Consti 2 First Exam Coverage

8/12/2019 Consti 2 First Exam Coverage

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Const i tu t ional Law 2Atty. Rovynne Jumao-as

(1st

Exam Coverage) Vol. 1| 1

Day 1 (Nov 20, 2012)

By: Charmaine Incio

(From 2012 MCQ Bar Questionnaire) Constitution is defined by

Cooley as:

a. a body of statutory, administrative and political provisions by

which the three branches of government are defined; (does

not)b. a body of rules and maxims in accordance

with which the powers of sovereignty are habitually

exercised;

c. a body of rules and edicts emanating from the

rulings of courts and written guidelines of the executive and

the legislature by which government is governed; (does not)

d. a body of interpretations and rules by which

the three branches of government are judged for purposes

of sovereign compliance with good corporate governance.

(does not)

Q: What is the Doctrine of Constitutional Supremacy?

A: All laws must bow to the Constitution (Consti) because it is the

fundamental law of the land.

BASIC PRINCIPLES ON CONSTITUTIONAL LAW AND THE

BILL OF RIGHTS

A. NATURE OF THE CONSTITUTION

A Constitution should have 3 essential parts:

1. Constitution of Government- 3 branches of govt

2. Constitution of Liberty- Bill of Rights

3. Constitution of SovereigntyAmendment and Repeal

Definition of Philippine Constitution

- A written instrument whereby the powers of the

government are established, written and defined and by

which these are distributed to several department for a

more effective service and exercise for the benefit of the

body politic.

Essence of Government

- To ensure that the people who drafted the Constitution

be made to enjoy their freedom;

- The government is supposed to be the defender of our

freedom.

- Abuse of government would be curtailemtn of freedom

vis--vis Abuse of freedom could also be disobedience to

the government.

- If we limit our Constitution on the Constitution of

government, how are we supposed to enfrorce or invoke

our freedom?

- We have now the BILL OF RIGHTS.

BILL OF RIGHTS

- As an essential part of a good Constitution- the Bill of

Rights is an enumeration and of a declaration of an

individuals rights against violations of the government.- It is a charter or liberty for the individual and a limitation

of the powers of the government. [ a constitutional limit

of the powers of the government; safeguard against

abuse of power]

- In the context of a government protecting a right, how

should we understand the Constitution?

Case: Manila Prince Hotel vs. GSIS (1997)

Q: Between the Renong Berhad and MPH, GSIS must choose?

A: The Filipino firm.

Q: Sec 10 of Art 12 contains 3 paragraphs. The SC that the 1stand

the 3rdpars are self-executing or not?

A: Not self-executing.

Q: The 2ndpar w/c was invoked by MPH is?

A: The only self-executing.

Q: When will you say that it is self-executing?

A: When it is complete on its terms and that we can invoke a right

from that specific par/provision.

Q: What is self-executing?

A: Self-executing is when you can invoke a right from that

provision and when that specific right is violated you can go to

court and seek for redress.

Q: That is, the right is judicially demandable w/o a need of what?

A: Any enacting laws/legislation that will support such.

Q: Not all provisions are self-executory, what are those provisions?

A: Article 2 Statement of State Policies and Principles.

Q: These will only serve as guidelines. Non self-executing means

that?

A: There is a need for a law for that to be enforceable.

Case: Tanada vs. Angara (1997)

Q: It is about a XXX (not clear) agreement and the petitioners are

questioning the validity of the agreement that it violates the Consti

particularly certain provisions under Article 2. What is the ruling of

SC?

A: The SC ruled that it should be dismissed.

Q: The petitioners are invoking the provision in A2 particularly theFilipino First Policy. Why did they dismiss the case? Are the

petitioners correct in invoking A2?

A: The SC ruled otherwise because A2 is non-self executing. When

you read A2 it must be read together w/ the other provisions of

the Consti. The petitioners even cited Sec10 of A12. When you the

declaration of principles you must read it along w/ the other

provisions.

Q: Can you remember the provision in this case that was declared

as self-executing by the SC?

A: the doctrine of inter-generational policy. In case of Oposa V

Factoran. The right to balance ecology. The SC held that that

particular provision is self-executing. Meaning, there is no need for

you to go into other existing laws.

CONSTRUCTION OF THE CONSTITUTION

The GENERAL RULE is that the provisions here are self-

executing.Otherwise, the effectivity of the Consti would be left

in the discretion of the Congress and would be dependent WON

the Congress will enact a law. So it must be that the provisions of

the Consti are self-executing. The exemption is that, if the

provision itself provides that it is to be effected only if there is an

enabling law. Example is the provision on dual allegiance w/c is

inimical and must be dealt w/ in accordance w/ the law. In other

words, if there is no law yet then you have no violation if you have

dual allegiance because it is not yet self-executing. Thats the

Conti in general.

On Bill of Rights

PBMEO V PBMCI (1973)


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Q: The demonstration is against the?

A: Pasig Police not on the company.

Q: they left their work, whats the consequence of their actions?

A: they were terminated.

Q: whats the ruling of CIR (industrial relation)? Is the terminationvalid?

A: PBMEO was found guilty of bargaining in bad faith. Case went

to SC.

Q: is this a labor issue? Why?

A: no. This is a mass demonstration against the Pasig Police not

against the employer. Thats why we are talking about the bill of

rights (BOR).

Q: why the CIR ruled in favor of the company? Surely the

company also has its rights. Is it conflict w/ the freedom of

expression etc?

M: This case talks about conflicts of 2 rights both protected by theBOR. Human rights v property rights of the company. But the

ruling of the SC is that the human rights are supreme over

the property rights because the latter is prescribed by

prescription while the former is imprescriptible so it must

be prevail over the latter. So in this case even if the rights are

protected equally there is still a hierarchy of rights and ultimately

human rights prevail.

Excerpt from the Case:

(5) While the Bill of Rights also protects property rights, theprimacy of human rights over property rights is

recognized.8

Because these freedoms are "delicate andvulnerable, as well as supremely precious in our society" and the"threat of sanctions may deter their exercise almost as potently asthe actual application of sanctions," they "need breathing space tosurvive," permitting government regulation only "with narrowspecificity."9

Property and property rights can be lost thru prescription; buthuman rights are imprescriptible. If human rights are extinguishedby the passage of time, then the Bill of Rights is a useless attemptto limit the power of government and ceases to be an efficaciousshield against the tyranny of officials, of majorities, of theinfluential and powerful, and of oligarchs political, economic orotherwise.

In the hierarchy of civil liberties, the rights of free expression andof assembly occupy a preferred position as they are essential tothe preservation and vitality of our civil and politicalinstitutions; 10and such priority "gives these liberties the sanctityand the sanction not permitting dubious intrusions." 11

The superiority of these freedoms over property rights isunderscored by the fact that a mere reasonable or rational relationbetween the means employed by the law and its object or purpose

that the law is neither arbitrary nor discriminatory noroppressive would suffice to validate a law which restricts orimpairs property rights. 12

PEOPLE VS. MARTI (1991)

Q: before a search and seizure can be had, what is reqd?

A: warrant

Q: when the package was opened is there a warrant?

A: no warrant.

Q: under the Consti, whats the effect if there is no warrant?

A: that would be a violation of the consti right of being secured

against the unreasonable search and seizure.

Q: what would be the effect of that?

A: that would be inadmissible as evidence.

Q: the ruling then?

A: Marti cannot invoke such Conti right of unreasonable search

and seizure and private communication because it was not done

by a public official/authority but by a private person. These rights

can only be invoke had it been done by a public authority. The

BOR therefore can only be invoked against the State.

M: the BOR is a proscription designed as protection for the

people against the acts of the State. He cannot claim the BOR

against Mr. Reyes who is a private individual. It is not a set of

rights invoke against another individual. This covers violations of

the State against the citizens. If violations against the individual

against another individual that would be Civil Law.

WATEROUS DRUG VS. NLRC (1997)

Q: between Catolico and her employer, was she dismissed?

A: she was dismissed.

Q: so she filed a case of illegal dismissal. Then NLRC held?

A: NLRC affirmed the findings of the Labor Arbiter. There was

failure on the part of the company to show Catolicos dishonesty.

The issue is WON there is a violation Consti rights.

Q: Whats the right?

A: Unlawful seizure and searches.

Q: whats the evidence?

A: the open check and an opened envelope that was alleged to be

given to her as a refund of the overprice.M: thats the only evidence. According to her it is inadmissible

because it was obtain w/o proper search warrant. If it is

inadmissible, there would be no evidence against her. If there is

no evidence against her the dismissal will be illegal. The court held

that the BOR cannot be invoke w/ regard to the unlawful search

because from People V Marti, the court held in this case that the

BOR protect the citizen from unreasonable searches and seizures

perpetrated by private individual. However, the court in this case

emphasized that it is not true that citizens dont have recourse for

such assaults. They held that on the contrary such invasion of BOR

is both liable for criminal and civil liabilities on the part of the

perpetrator. The distinction is when it is violated by another

individual you can claim right under the Civil Law or when it is aviolation of law and there is a penalty you can claim it under Crim

Laws. But if it is a violation BY THE STATE against YOU, you can

claim that right under the BOR.

YRASUEGI VS. PAL (2008)

Q: how his weight related to his work? Why?

A: flight safety. Weight would affect his performance in case of

emergency during flights.

Q: he is invoking his Consti right. Whats that?

A: People protection as guaranteed by the Consti. Meaning against

discrimination. But here he failed to substantiate that there was

discrimination.

FILOTEO VS. SANDIGANBAYAN (1996)

Q: was he convicted?

A: yes.

Q: whats the basis of his convictions?

A: extra-judicial confessions

Q: Meaning?


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A: xxx (not clear)

Q: Extrajudicial confessions made by the police officers. These

confessions were reduced into writing as evidence against him. He

was convicted. Whats his ground for appealing?

A: xxx

Q: whats the basis of his contentions?

A: 1987 Consti, provides thatSection 12.

1. Any person under investigation for the commission of an

offense shall have the right to be informed of his right to

remain silent and to have competent and independent

counsel preferably of his own choice. If the person

cannot afford the services of counsel, he must be

provided with one. These rights cannot be waived except

in writing and in the presence of counsel.

No counsel was around but extra-judicial questions were taken.

Even if it was voluntary accdng to him such is not assisted by a

counsel. But the confession was taken in 1982. The court said he

cannot be covered xxx.

M: Another rule in construction of consti is that it should beinterpreted prospectively. Even if the extrajudicial confession

was made w/o counsel at that moment that it was taken there was

no violation of the Consti yet. It was still under the 1973-consti

w/c this right cannot be found in the 1987 consti.

Q: who states that the executive is wrong or that the legis dept is

wrong?

A: the judiciary.

Q: what is judicial power?

A: article 2 sec 1

Section 1. The judicial power shall be vested in one Supreme

Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settleactual controversies involving rights which are legally

demandable and enforceable, and to determine whether or

not there has been a grave abuse of discretion amounting

to lack or excess of jurisdiction on the part of any branch

or instrumentality of the Government.

General Definition of Judicial Power

1987 Consti expanded it. Why expanded? Because it can

now check the acts of the other branch of the govt.

Some says that it is a violation of separation of power. But in this

case, we say that it is not in fact we have expanded it and brought

it to the Consti (thats why we call it expanded judicial power).

Q: So what s the power of judicial review?

A: So when you ask the constitution to determine the

constitutionality of particular act of other department eg exec

agreement (exec dept) or constitutionality of laws (legis dept).

when you invoke that power you are invoking the power of judicial

review. In that sense, only the SC can declare a particular act of

other dept as unconstitutional. So you distinguish that to the

judicial power. The power of judicial review is just an aspect of

judicial power. So when you say judicial review put into mind that

the question will only be constitutionality. Since it is determining

acts of other depts the SC will not exercise this power worklessly

because it could be encroachment in the separation of powers. Sothere are determinants whether they will entertain the consti

issues.

Actual case/controversy w/c means there is legal rights invoke.

Ripe. Meaning, you cannot ask if that would only be for

educational purposes.

Locus Standi. That the party will sustain or sustained injury from

that act. Thats the direct injury test. But in jurisprudence the SC

allowed tax payers suit, voters suit and citizens suit.

Earliest opportunity. Cases filed on the lowest court, it must be

raise there. If not raised, that would not be tackled during trial. If

not tackled, you cannot claim that during appeal. If not claim

during appeal the more you cannot change the entire theory ofthe case when you reach the SC.

Lis mota. The issue is unavoidable. Every act of the pres or the

legislative (for instance) are presumed to be constitutional. The SC

will only come in and say that it is not constitutional if that is the

lis mota of the case. Meaning, if there are other grounds by w/c

the SC can decide the case w/o touching the issue of

constitutionality the SC can do it. It will defer the issue

constitutionality until later or only when they cannot avoid the

issue constitutionality because the judiciary is supposed to respect

the presumption of constitutionality. So the SC can only determine

the issue of constitutionality only when it is now the very lis mota

of the case. That is, the SC cannot decide the case in some other

grounds. It is already unavoidable.

REVIEW: (taken from previous consti 2 notes)

BASIC PRINCIPLES

1. The Constitution is the supreme law of the land and all

laws must bow to it. Otherwise, any law, act/enactment

shall be considered null and void.

2. In construing the Constitution, unless it is expressly

provided that a legislative act is necessary to enforce a

Consitutional mandate, the presumption is that ALL

PROVISIONS OF THE CONSTITUTION ARE SELF-

EXECUTING.- A provision of the Constitution should be presumed

self-executing unless it necessarily provides that is needs

a legislative enactment for it to be effective.

- Non-self executing: Usually, the provision would start

with, as provided for by law, Congress must enact..

- It must be understood that the Constitution is drafted

on the pretext that the Consti already embodies a code

of effective laws. It has an effect upon the people in the

same way that laws have that effect upon the people.

- If the constitutional provisions are construed as non-

self-executing, the Constitution would be dependent on

the action of the legislative department and its effectivity

primarily rest on WON Congress will enact a law. Thelegislative department is not the Consti. The Consti was

made by the people and that should already be given

effect. If that would be otherwise, the legislative

department would have then the power to ignore and

practically nullify the mandate of the fundamental law if

its effectivity would be dependent on the action of the

Congress.

3. A provision which lays down a general principle such as

that of Article 2 of the 1987 Constitution is non-self-

executing.

- By the title itself, Art. 2 are the general principles of

the Constitution.

- There is no conflict actually. In the first, when there

is a mandate, all provisions should be presumed to

be self-executing. If the provision partakes of a

general principle, then it requires legislative

enactment- therefore, NSE.

- E.g. Article II- which part is declared as self-

executing?


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- Answer: RIGHT TO ECOLOGY AND ENVIRONMENT

because of intergenerational responsibility.

4. Human rights prevail or are given primacy over property

rights.

- In fact, property rights could prescribe. E.g.

recovery of possession. If you dont exercise that,you lose your right to recover. In human rights, it

does not prescribe.

5. The BOR govern the relationship between the individual

and the State. Therefore it is not meant to be invoked

against acts committed by private individuals.

- In the absence of governmental interference, the

liberties guaranteed by the BOR cant be invoked

against the state. The BOR can only be invoked

against governmental acts. It is designed as a

protection by the individual against governmental

acts and not by acts of an individual against another

individual.- What is the persons relief then if a right is violated

by another private individual?

- Civil and crim laws which has sanctions and

penalties against these violations. You cannot really

invoke your constitutional rights based on BOR if the

one violating your right is a private individual.

6. Constitution/ Bill of Rights may only be given prospective

effect.

Classification of Rights

Civil Rights

2. Political Rights4. Social and Economic Rights

5. Human rights

Qualities and essential parts of a good written Constitution

Every failure brings with it the seed of an equivalent success.

- Napoleon Hill-

Day 2

Transcribed by: Glowing Gloria

Yesterday we reviewed the basic concept of the constitution. That

it is the basic law of the land. We have the doctrine of

constitutional supremacy that all statutes and relations must

conform to it.

Manila Prince Hotel vs GSIS

In the case of Manila Prince hotel, based on the doctrine

of constitutional supremacy, the constitution is deemed written in

the law and the provisions of the contract.

PARTS OF THE CONSTITUTION

In the declaration of constitutionality, the Supreme Court exercises

the power of judicial review which is part and parcel of judicial

power.

We also discuss construction of the constitution.

RULE OF CONSTRUING

- GR: The provisions of the constitution should be

construed as self executing otherwise, it will deem be

dependent to the discretion of the congress WON to

effective of the provision. But in some instances there

are provisions which are not self-executing it means that

there is a need of legislation to give effect to these

provisions. In other words, you can claim rights under

these provisions for it is not judicially determinable. It is

just a declaration of state policy and nothing more.- Another rule in construing the constitution is that it is

prospective in application and it cannot be given a

retroactive effect. When a right does not exist in the

moment you cannot invoke that constitution wherein the

right exist. Ex. Is the right to counsel, when giving/ or

waiving the right to counsel must be in the presence of a

lawyer/counsel it came out only during the 1987

constitution and when the confession was taken prior to

that, even if you were tried in the 1987 constitution, you

cannot claim such right under the new constitution.

-

BILL OF RIGHTS

We said that bill of rights is against the state, it is a

proscription against the state action. It limits the action of the

state. So when there is no governmental interference , one cannot

invoke the bill of rights. If it is a violation of an individual by a

private person, one can claimed relief in our civil laws or criminal

laws. But if it is the state that violates the rights of individual, you

go to your constitutional particularly the bill of rights.

Another principle is the hierarchy of rights. The highest

in the hierarchy is the human rights and then comes the property

rights. But when it comes to human rights the freedom of

expression takes the highest place in the hierarchy.

WHEN THE LAW IS DECLARED AS UNCONSTITUTIONAL WHAT

WOULD BE THE EFFECT?

We have two effects. The Supreme Court can apply either:

Orthodox view, or

Modern view

Orthodox view- an unconstitutional law is not a law. It never

exist therefore there can be no right that may arise under such

law.

Modern view/operative fact doctrine- that prior to its

declaration of its unconstitutionality, the law is under operation.

Therefore, those who are bound to follow it must follow the said

law prior to its declaration of unconstitutionality.

THREE FUNDAMENTAL AND INHERENT POWERS OF THE STATE

Police power

Power of expropriation

Power of Taxation

Police power-it is the power to regulate liberty and property for

the purpose of general welfare. It is the power of the state to

enact legislation in relation to person and properties as maypromote public health, public morals and public safety and the

general welfare and convenience of the people.

ED-it is the power of the state to forcibly take private property for

purposes of public purpose provided just compensation is duly

served.


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TAXATION- here the state can forcibly require contribution from

the members of the society for the maintenance of the

government. Any force contribution.

SIMILARITIES OF THESE POWERS

1ST

- All of them are inherent in the state. It existence because thestate exist. In other words, these powers are not dependent in the

grant of power in the fundamental law of the land (Constitution).

It means that these takes place the moment that the state exists.

2ndThese powers are indispensible. To destroy it would be to

destroy the very purpose of the state if it could be deprived of its

competence to promote the general welfare, competence to

demand contribution, and competence to forcibly take private

property for public purpose use. These powers are necessary for

the continuance and existence of the state. The state cannot exist

without these powers.

3rd

all of these powers are methods by which the state interferewith private rights. When the state exercise police power say it

prohibits smoking, when the state prohibits smoking to public

places, it takes away the ones right to smoke. So this is one way

to interfere private rights. When the state for example takes your

property forcibly, it is one way of interfering of your right to enjoy

your property.

Recall again that the Bills of rights are the proscriptions of the bill

of rights and the provisions therewith, serves as the defense to

these methods where the state interferes with private rights.

4TH- each of these powers presupposes compensation. The state

takes something away, you get something in return. In theexercises of taxation for example, what is the return?

Infrastructures and promotion of governments projects dba. In

the exercise of eminent domain, just compensation dba. It is

guaranteed by the constitution the payment of just compensation.

In the exercised of police power, the compensation will not be

directly felt. Example requiring the use of seat belt, it is an

exercise of police power. The benefit will not be directly felt unless

you meet an accident and you will say kamshamida state

5th- these are primarily exercised by the legislative department.

These are powers by the state and it can only be expressed

through laws.

Now lets go to police power

POLICE POWER

It is the power of the state to enact laws or regulations.

Taking quo of that, it is the power exercised by the legislative

body through enactment of a law or regulation. The law and

regulation is in relation.. The purpose is to provide for the general

welfare. Public health, morals, safety and convenience of the

people. PP is inherent power of the state to prohibit any harmful

to the confort and dsafety and wekfare of the society. It is the

power of promoting the general welfare by restraining and

regulating liberty and property.

CHARACTERISTICS OF POLICE POWER

1stit is the most persuasive.It affects almost all aspects of

life. I always say that police power affect one form womb to tomb.

From the moment you are born the state requires for you to be

registered in the LCR. The moment that you are called by the

creator, kailangan parin mag- registered. It affects all kahit

magwalk lang along the street, kailangan maga walk sa pedestrian

lane.

2ndIt is the least limitable.It cannot be limited by treaty or

by any contract. As we cannot foresee incidents, the state cannot

be limited in its duty to secure the general welfare. The

constitution therefore does not define the scope of police power.Like in the case of the anti-cybercrime law. Before the concept of

the crime virtually has not be thought of. Is this covers the police

power of the state? Yes (yes yoh) It is because police power is

dynamic and least limitable.

3rd it can be exercised through the use the power of

taxation and the power of eminent domain.In other words

the state can exercised the power of police power regulate rights

prohibits acts through the use of power of taxation and power of

eminent domain. How

Example: When the state wants to promote public

health and prohibits smoking, it can do it by directly prohibiting

smoking or by increasing taxes in cigarettes.If the state wants to protect the youth from alcoholism,

the state can increase the taxes on alcoholic beverages. Although

collaterally, there is an increase of public funds, the main purpose

is regulation. It is more on the exercise of police power rather

than the exercise of the power of taxation.

When the state, provide for equal distribution of agricultural lands,

it can do it by expropriating privately own. Normally, that would be

an exercised of power of ED but since the main purpose is the

equal distribution of agricultural lands, in promotion of general

welfare; it is an exercise of PP. It is a police power exercise in the

power of ED.

Lets go to the cases>>>>

ERMITA VS CITY OF MANILA

GlowingGLoriaNotes(GGN): - In the case of Ermita Malate Hotel

Operators v. Mayor of Manila, take note this was way back in the

60s. This does not hold true at present. You know the SC even

has to adjust to the changing time. And so in this ordinance

enacted by the municipality of manila, the ordinance prohibited

persons from entering the premises of any of the rooms of any of

the hotels, motels, inns, pension houses located in Ermita Malate

unless he registered in a book registry located at the lobby at the

hotel and in no case may any minor be allowed, be admitted to

any of the premises or rooms of such hotels without beingaccompanied by his parent or guardian. You can just imagine this

ordinance is passed here. So certainly at that time, the Sc ruled for

the validity of this ordinance because the objective here is to

promote public morals. So it is in safeguarding morality and here

the SC observed the increasing incidents of prostitution,

fornication, because of the establishment of these hotels, motels

in this area.---Attys Elman Lectures--

FACTS :An ordinance was passed by then the Municipality of

manila providing for the increase of the license fee for those

hotels along ermita and malate in addition the ordinace also

stated that in no case any person be allowed to enter the premise

and be admitted in any of the rooms without registering in a book

registry which woul be situated in the lobby open in public view

and it is further provided that in no case should any person below

18 years of age be admitted to any rooms without being

accommodated by his parents or guardians.

This was so contested by Petitioner representing 18 hotels in

the Ermita Malate area. The following are their contentions:

that Section 1 of the challenged ordinance is unconstitutional


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and void for being unreasonable and violative of due process

insofar as it would impose P6,000.00 fee per annum for first

class motels and P4,500.00 for second class motels;( License

fee increase)

that the provision in the same section which would require

the owner, manager, not to entertain/accept costumer

without signing a record book in the lobby of the hotel opento public is unconstitutional on due process grounds, and

likewise for the alleged invasion of the right to privacy and

the guaranty against self-incrimination;

that Section 2 of the challenged ordinance classifying motels

into two classes and requiring the maintenance of certain

minimum facilities in first class motels such as a telephone in

each room, a dining room or, restaurant and laundry similarly

offends against the due process clause for being arbitrary,

unreasonable and oppressive, a;

that prohibiting a person less than 18 years old from being

accepted in such hotels, motels, unless accompanied by

parents or a lawful guardian runs counter to the due process

guaranty for lack of certainty and for its unreasonable,arbitrary and oppressive character;

and that insofar as the penalty provided automatic

cancellation of the license of the offended party, in effect

causing the destruction of the business and loss of its

investments, there is once again a transgression of the due

process clause.

SC RULED upholding the constitutionality of the said

ordinance. The following are the reasons in upholding the said

ordinance:

There being a presumption of validity of the ordinance, the

necessity for evidence to rebut it is unavoidable, unless the statute

or ordinance is void on its face which is not the case here. No suchfactual foundation being laid in the present case, the lower court

deciding the matter on the pleadings and the stipulation of facts,

the presumption of validity must prevail and the judgment against

the ordinance set aside. The Petitioners assert with plausibility

that on its face the ordinance is fatally defective as being

repugnant to the due process clause of the Constitution must

likewise fail. ( Halos tanan rason nalng nila kay against due

process for being vague lage daw). The mantle of protection

associated with the due process guaranty does not cover

petitioners. There can be a violation of due process if the said

ordinance is unreasonable etc. This particular manifestation of a

police power measure being specifically aimed to safeguard public

morals is immune from such imputation of nullity resting purely onconjecture and unsupported by anything of substance. ( wala

evidence to prove its nullity on the grounds of being a

unreasonable)

LICENSE FEE INCREASE. The increase in the licensed fees

was intended to discourage "establishments of the kind from

operating for purpose other than legal" and at the same time,

to increase "the income of the city government." It would

appear therefore that the stipulation of facts, far from

sustaining any attack against the validity of the ordinance,

argues eloquently for it.

o As was explained more in detail in the above Cu

Unjieng case: (2) Licenses for non-useful

occupations are also incidental to the police powerand the right to exact a fee may be implied from the

power to license and regulate, but in fixing amount

of the license fees the municipal corporations are

allowed a much wider discretion in this class of

cases than in the former, and aside from applying

the well-known legal principle that municipal

ordinances must not be unreasonable, oppressive,

or tyrannical, courts have, as a general rule,

declined to interfere with such discretion. The

desirability of imposing restraint upon the number of

persons who might otherwise engage in non-useful

enterprises is, of course, generally an important

factor in the determination of the amount of this

kind of license fee. Hence license fees clearly in the

nature of privilege taxes for revenue have frequentlybeen upheld, especially in of licenses for the sale of

liquors. In fact, in the latter cases the fees have

rarely been declared unreasonable.23

o GGN: Notes from somewhere. Government can take

away a license and increase the cost of license fees

even to prohibitive levels, if public interest dictates

so, without any constitutional violations.

RIGHT TO PRIVACY AND RIGHT AGAINST SELF

INCRIMINATION. There is no occasion to consider even

cursorily the alleged invasion of the right of privacy or the

prohibition against self-incrimination. Petitioners obviously are

not the proper parties to do so. Nor may such an incurabledefect be remedied by an accommodating intervenor "who

has always taken advantage of as he exclusively relies on, the

facilities, services and accommodations offered by petitioner-

motels.

AS TO THE ARGUMENT THAT IT IS A RESTRICTION TO

CONTRACT. Nor does the restriction on the freedom to

contract, insofar as the challenged ordinance makes it

unlawful for the owner of hotel or inns etc, to lease or rent

rooms more than twice every 24 hours. Again, such is not a

transgression against the command of due process. It is

neither unreasonable nor arbitrary. It was intended to curb

the opportunity for the immoral or illegitimate use. How could

it then be arbitrary or oppressive when there appears acorrespondence between the undeniable existence of an

undesirable situation and the legislative attempt at correction.

The mere fact, that some individuals in the community may

be deprived of their present business or a particular mode of

earning a living cannot prevent the exercise of the police

power. As was said in a case, persons licensed to pursue

occupations which may in the public need and interest be

affected by the exercise of the police power embark in these

occupations subject to the disadvantages which may result

from the legal exercise of that power

THE SAID ORDINANCE IS A VALID EXERCISE OF POLICEPOWER.The objective here is to safeguard of public morals the

SC took notice of the increase in prostitution attributed one of the

reasons is the increase of motels in the said area.

RECITATION: What is the ruling of SC? Would you agree or would

you like to disagree? This case was on 1967, today it will not apply

because the concept of morality is dynamic (White light case). In

this case SC declared that such ordinance is very valid for it is in

for the purpose of public morals. It is protects against immorality,

prostitution and adultery and fornication.

TAXI OPERATORS VS BOT

GlowingGlowingNotes (GGN) BOT issued a circular. What was

issued here is a circular in performing police power and not an

ordinance kay dili man siya LGU. BOT issued an circular mandating

that taxi 6 years old should be banned from operating. The SC

ruled that in the absence of any constitutional infirmity the said

circular is valid on the ground of general welfare in safety and

welfare of the society.


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Facts: BOT of Manila issued a memorandum circular which

provides taxi units with year models over six (6) years old are now

banned from operating as public utilities in Metro Manila

(considered as automatically dropped as public utilities and,

therefore, do not require any further dropping order from the

BOT.) Likewise taxi units within the NCR having year models over6 years old shall be refused registration.

Petitioner contends

That they were denied procedural due process, on the ground

that they were not caged upon to submit their position

papers, nor were they ever summoned to attend any

conference prior to the issuance of the questioned BOT

Circular.

That fixing the ceiling at six (6) years is arbitrary and

oppressive because the roadworthiness of taxicabs depends

upon their kind of maintenance and the use to which they are

subjected, and, therefore, their actual physical condition

should be taken into consideration at the time ofregistration. ( depende sa pag-alaga sa taxi )

That the Circular in question violates their right to equal

protection of the law because the same is being enforced in

Metro Manila only and is directed solely towards the taxi

industry.

SC Ruled: The said Circular is valid exercised of police power on

the following grounds:

IT DOES NOT VIOLATE PROCEDURAL PROCESS. BOT gives it

a wide range of choice in gathering necessary information or

data in the formulation of any policy, plan or program. It is

not mandatory that it should first call a conference or require

the submission of position papers or other documents fromoperators or persons who may be affected, this being only

one of the options open to the Board, which is given wide

discretionary authority. Petitioners cannot justifiably claim,

therefore, that they were deprived of procedural due process.

Neither can they state with certainty that public respondents

had not availed of other sources of inquiry prior to issuing the

challenged Circulars. operators of public conveyances are not

the only primary sources of the data and information that

may be desired by the BOT.

AS TO THE ISSUE NA DAPAT ACTUAL CONDITION SA TAXI

ANG DAPAT ICONSIDER IN REGISTRATION. A reasonable

standard must be adopted to apply to a vehicles affected

uniformly, fairly, and justly. The span of six years suppliesthat reasonable standard. The product of experience shows

that by that time taxis have fully depreciated, their cost

recovered, and a fair return on investment obtained. They are

also generally dilapidated and no longer fit for safe and

comfortable service to the public especially considering that

they are in continuous operation practically 24 hours every

day in three shifts of eight hours per shift. With that standard

of reasonableness and absence of arbitrariness, the

requirement of due process has been met.

EQUAL PROTECTION. This is of common knowledge.

Considering that traffic conditions (grabe sa Manila) are not

the same in every city, a substantial distinctionexists so

that infringement of the equal protection clause can hardly besuccessfully claimed.

The State, in the exercise, of its police power, can prescribe

regulations to promote the health, morals, peace, good order,

safety and general welfare of the people. It can prohibit all things

hurtful to comfort, safety and welfa re of society. 5It may also

regulate property rights. 6In the language of Chief Justice Enrique

M. Fernando "the necessities imposed by public welfare may

justify the exercise of governmental authority to regulate even if

thereby certain groups may plausibly assert that their interests are

disregarded".

Atty Jumao-as : What about the argument that the criteria of 6

years is suppressive because the roadworthiness of a car depends

upon its maintenance? Why not based it on the actualperformance of the taxi? ( read the above digest) So class, there is

this reasonable standard in the case that the 6 years

roadworthiness of the taxi. In particular, taxis are used 24 hours a

day not like private cars diba na work and home lang and even it

is still 6 years old it is still new. In the case at bar, there must be a

reasonable standard. To make the actual physical condition of the

taxi as the criteria would open up subjectively and correction and

inclusion in fact. SC said it is a valid criteria ( yung 6 years criteria)

See, the state can even dictate how can you use your car for

business. Taht is police power.

INCHONG vs HERNANDEZ( Sari-sari store case)

NOTE: Girls, dili ko confident ani akong digest kay dili ko ganahan

sa case.

Facts: Republic Act No. 1180 is entitled "An Act to Regulate the

Retail Business." In effect it nationalizes the retail trade business.

The main provisions of the Act are:

(1) a prohibition against aliens from engaging directly or indirectly

in the retail trade;

(2) an exception from the above prohibition in favor of aliens

actually engaged in said business on May 15, 1954, who are

allowed to continue to engaged therein, unless their licenses areforfeited in accordance with the law,

(3) an exception therefrom in favor of citizens and juridical entities

of the United States;

(4) a provision for the forfeiture of licenses (to engage in the retail

business) for violation of the laws on nationalization, control

weights and measures and labor and other laws relating to trade,

commerce and industry;

(5) a prohibition against the establishment or opening by aliens

actually engaged in the retail business of additional stores or

branches of retail business,

(6) a provision requiring aliens actually engaged in the retail

business to present for registration with the proper authorities a

verified statement concerning their businesses, giving, amongother matters, the nature of the business, their assets and

liabilities and their offices and principal offices of judicial entities;

and (7) a provision allowing the heirs of a liens now engaged in the

retail business who die, to continue such business for a period of

six months for purposes of liquidation.

Petitioner contends: Petitioner attacks the constitutionality of the

Act, contending that:

(1) That its exercise in this instance is attended by a violation of

the constitutional requirements of due process and equal

protection of the laws

(2) the Act violates international and treaty obligations of the

Republic of the Philippines;(3) that the provisions of the Act against the transmission by

aliens of their retail business thru hereditary succession, and

those requiring 100% Filipino capitalization for a corporation

or entity to entitle it to engage in the retail business, violate

the spirit of Sections 1 and 5, Article XIII and Section 8 of

Article XIV of the Constitution.

SC ruled upholding the said law on the following grounds:


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IT IS A VALID EXERCISE OF POLICE POWER. It has been

said the police power is so far - reaching in scope, that it has

become almost impossible to limit its sweep. As it derives its

existence from the very existence of the State itself, it does not

need to be expressed or defined in its scope; it is said to be co -

extensive with self-protection and survival, and as such it is the

most positive and active of all governmental processes, the mostessential, insistent and illimitable. Otherwise stated, as we cannot

foresee the needs and demands of public interest and welfare in

this constantly changing and progressive world, so we cannot

delimit beforehand the extent or scope of police power by which

and through which the State seeks to attain or achieve interest or

welfare. So it is that Constitutions do not define the scope or

extent of the police power of the State; what they do is to set

forth the limitations thereof. The most important of these are the

due process clauseand the equal protection clause.

IT DOES NOT VIOLATE EQUAL PROTECTION

CLAUSE: the power of the legislature to make distinctions and

classifications among persons is not curtailed or denied by theequal protection of the laws clause. The legislative power admits

of a wide scope of discretion, and a law can be violative of the

constitutional limitation only when the classification is without

reasonable basis. Aliens are under no special constitutional

protection which forbids a classification otherwise justified simply

because the limitation of the class falls along the lines of

nationality. Broadly speaking, the difference in status between

citizens and aliens constitutes a basis for reasonable classification

in the exercise of police power. Aliens do not naturally possess

the sympathetic consideration and regard for the customers with

whom they come in daily contact, nor the patriotic desire to help

bolster the nation's economy, except in so far as it enhances their

profit, nor the loyalty and allegiance which the national owes tothe land. The difference of aliens aim and purpose is a sufficient

ground for distinction as to warrant classification. Note however,

these constitutional guarantees which embody the essence of

individual liberty and freedom in democracies, are not limited to

citizens alone but are admittedly universal in their application,

without regard to any differences of race, of color, or of

nationality. But in the case at bar, valid ang classification.

IT DOES NOT VIOLATE DUE PROCESS., The privilege

(retailed business) has been so grossly abused by the alien, thru

the illegitimate use of pernicious designs and practices, that he

now enjoys a monopolistic control of the occupation and threatens

a deadly stranglehold on the nation's economy endangering thenational security in times of crisis and emergency. The law is not

unreasonable. A cursory study of the provisions of the law

immediately reveals how tolerant, how reasonable the Legislature

has been. The law is made prospective and recognizes the right

and privilege of those already engaged in the occupation to

continue therein during the rest of their lives; and similar

recognition of the right to continue is accorded associations of

aliens. The right or privilege is denied to those only upon

conviction of certain offenses.

In the deliberations of the Court on this case, attention

was called to the fact that the privilege should not have been

denied to children and heirs of aliens now engaged in the retailtrade. Such provision would defeat the law itself, its aims and

purposes. Besides, the exercise of legislative discretion is not

subject to judicial review.

Furthermore, the test of the validity of a law attacked as

a violation of due process is not its reasonableness, but its

unreasonableness, and we find the provisions are not

unreasonable. These principles also answer various other

arguments raised against the law, some of which are: that the law

does not promote general welfare; that thousands of aliens would

be thrown out of employment; that prices will increase because of

the elimination of competition; that there is no need for the

legislation; that adequate replacement is problematical; that there

may be general breakdown; that there would be repercussions

from foreigners; etc. Many of these arguments are directed

against the supposed wisdom of the law which lies solely withinthe legislative prerogative; they do not import invalidity.

DOES NOT VIOLATE THE TREATY. But even

supposing that the law infringes upon the said treaty, the treaty is

always subject to qualification or amendment by a subsequent law

and the same may never curtail or restrict the scope of the police

power of the State

CONCLUSION : SC hold that the disputed law was

enacted to remedy a real actual threat and danger to national

economy posed by alien dominance and control of the retail

business and free citizens and country from dominance and

control; that the enactment clearly falls within the scope of the

police power of the State, thru which and by which it protects itsown personality and insures its security and future; that the law

does not violate the equal protection clause of the Constitution

because sufficient grounds exist for the distinction between alien

and citizen in the exercise of the occupation regulated, nor the

due process of law clause, because the law is prospective in

operation and recognizes the privilege of aliens already engaged in

the occupation and reasonably protects their privilege.

ATTY JUMAO-AS- in this case, Aliens are prohibited to engaged

in real trade business ( sari-sari store) pero pwede sila ug whole

sale. The petitioners here are aliens kay sila nagfile na case kasi

affected sila. What the law is trying to protect?

DECS vs San Diego (1989) ( NMAT CASE)

The case at bar involves the sentiments of a student graduate at

the UE (BS in zoology). This is a petition that challenges the

constitutionality of MECS Order No. 12, Series of 1972, containing

the three-flunk rule in taking the NMAT. The additional grounds

raised were due process and equal protection. There is also part of

the argument involving her right to quality education.

SC ruledupholding the constitutionality of MECS Order as a valid

exercise of Police power on the following grounds:

Police power is validly exercised if (a) the interests of the public

generally, as distinguished from those of a particular class, requirethe interference of the State, and (b) the means employed are

reasonably necessary to the attainment of the object sought to be

accomplished and not unduly oppressive upon individuals. In other

words, the proper exercise of the police power requires the

concurrence of a lawful subject and a lawful method.

The subject of the challenged regulation is certainly within the

ambit of the police power. It is the right and indeed the

responsibility of the State to insure that the medical

profession is not infiltrated by incompetents to whom patients

may unwarily entrust their lives and health.

The method employed by the challenged regulation is not

irrelevant to the purpose of the law nor is it arbitrary or

oppressive. The three-flunk rule is intended to insulate themedical schools and ultimately the medical profession from

the intrusion of those not qualified to be doctors.

While every person is entitled to aspire to be a doctor, he

does not have a constitutional right to be a doctor. This is

true of any other calling in which the public interest is

involved; and the closer the link, the longer the bridge to

one's ambition. The State has the responsibility to harness its

human resources and to see to it that they are not dissipated


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or, no less worse, not used at all. These resources must be

applied in a manner that will best promote the common good

while also giving the individual a sense of satisfaction.

THE RIGHT TO QUALITY EDUCATION INVOKED BY THE

PRIVATE RESPONDENT IS NOT ABSOLUTE. The Constitution

also provides that "every citizen has the right to choose aprofession or course of study, subject to fair, reasonable and

equitable admission and academic requirements. The Court feels

that it is not enough to simply invoke the right to quality education

as a guarantee of the Constitution: one must show that he is

entitled to it because of his preparation and promise. The private

respondent has failed the NMAT five times. 7While his persistence

is noteworthy, to say the least, it is certainly misplaced, like a

hopeless love.

EQUAL PROTECTION CLAUSE: there is a substantial

distinction exists between medical students and other students

who are not subjected to the NMAT and the three-flunk rule. The

medical profession directly affects the very lives of the people,unlike other careers which, for this reason, do not require more

vigilant regulation. The accountant, for example, while belonging

to an equally respectable profession, does not hold the same

delicate responsibility as that of the physician and so need not be

similarly treated.

ATTY JUMAO-AS: The student is invoking his constitutional right.

What is that? ( Right to quality education). Do you have a

constitutional right to become a lawyer? (Ana ang gwapo nakung

katapad na no daw kay mere privilege lng daw well i guess his

right cheesssy) Why the SC is said he cannot be a doctor?

One have the constitutional right to aspire for that profession but

one does not have the constitutional right to practice for suchprofession if he does not qualify based on the qualifications as

provided by law. The law has these qualifications as a means of

regulations. The more your profession affects the general welfare ,

the more it is regulated. So in this case, the practice of medicine

directly affects the practice of public health and welfare therefore

the state has the right to regulate the practice of the profession

and its starts by implementing qualifications of who are allowed to

take the NMAT. This is the same in the study of law dba kasi may

limit na ang examination of the bar. (3-bar flunk rule)

CARLOS SUPERDRUG vs DSWD

The state wants to promote the welfare of Senior citizen. How? Byrequiring the establishment to issue discounts. How much? 20%.

In return what will the establishment get? They will get Tax

deduction of the gross not even on the particular item. What will

happen is that they will be spending more not for their benefit but

for the benefit of the SC. In other words, private institution are ask

to subsidized what would have been the function of the state to

promote the welfare of the SC. Para bang may funds naman kayo

bat pa kayo kukuha sa amin. So they question the validity of the

law. SC held that their property rights of their income should yield

to right of the state to ..welfare as stated in Article II section 10.

Carlos Superdrug cannot assert their property right over the state

in view of PP. The state can even ask private institution to

subsidized programs of the government which i think if i would bethe lawyer i will ask reconsideration of the case ( ) Because , if

the police power is to regulate , iba ang case na ito for the state is

asking for contribution from the capital itself. I think it is taken

from the net but you ask for the deduction from the gross.

WHO EXERCISES POLICE POWER?

We said it is primary exercise by the legislature. Because

it is the power to enact laws to regulate liberty and property for

general welfare. The legislation however can delegate this power

through proper delegation of legislative powers. Delegation of PP

pwede sa president, admin bodies and LGU.

Police power is an inherent attribute of sovereignty. It has beendefined as the power vested by the Constitution in the legislature

to make, ordain, and establish all manner of wholesome and

reasonable laws, statutes and ordinances, either with penalties or

without, not repugnant to the Constitution, as they shall judge to

be for the good and welfare of the commonwealth, and for the

subjects of the same. The power is plenary and its scope is vast

and pervasive, reaching and justifying measures for public health,

public safety, public morals, and the general welfare.

It bears stressing that police power is lodged primarily in the

National Legislature. It cannot be exercised by any group or body

of individuals not possessing legislative power. The National

Legislature, however, may delegate this power to the President

and administrative boards as well as the lawmaking bodies ofmunicipal corporations or local government units. Once delegated,

the agents can exercise only such legislative powers as are

conferred on them by the national lawmaking body.

A local government is a "political subdivision of a nation or state

which is constituted by law and has substantial control of local

affairs." The Local Government Code of 1991 defines a local

government unit as a "body politic and corporate." one

endowed with powers as a political subdivision of the National

Government and as a corporate entity representing the inhabitants

of its territory. Local government units are the provinces, cities,

municipalities and barangays.19They are also the territorial and

political subdivisions of the state.20( MMDA case)

REVIEW CENTER vs ERMITA

This is in relation to the leakage of the nursing board examination

which leakage was sourced from the nursing board itself. The

president issued an EO wherein she commanded the CHED to

supervise review centers which are not degree granting institution.

The CHED, under the law creating such, only supervise institutions

of higher education. It does not cover review centers. Now it

supervising review centers is the president exercising police

power? SC ruled that she can only exercise that through a law that

grants her to supervise educational institution. Unfortunately, the

law that existed is that law that creates the CHED and the same

limits the CHED only to institution of higher education. Therefore it

does not cover review centers. Also in this case, the congress has

not delegated Police power to the president to regulate review

centers. The exercised of PP of the president therefore is invalid.

TAXICAB operators VS. BOT

The exercise of police power in this case was delegated in the

BOT. So as long as there is a law granting the admin body to

exercised Police power, that exercise in valid.

RULE IN LOCAL GOVERNMENT UNITS- (LGU)

The LGU as understand in our constitution is a government unit as

a "body politic and corporate." It endowed with powers as a

political subdivision of the National Government and as a corporate

entity representing the inhabitants of its territory. Local

government units are the provinces, cities, municipalities and

barangays. They are also the territorial and political subdivisions

of the state.

The congress delegated the exercised of Police power in the LGU

thru the local government code of 1991 particularly sec 16 of the

general welfare clause:

Sec. 16. General Welfare.Every local government unit

shall exercise the powers expressly granted, those

necessarily implied therefrom, as well as powers
http://f/GGN/MMDA%20vs%20Belair%20200.htm%23fnt19http://f/GGN/MMDA%20vs%20Belair%20200.htm%23fnt19http://f/GGN/MMDA%20vs%20Belair%20200.htm%23fnt19http://f/GGN/MMDA%20vs%20Belair%20200.htm%23fnt20http://f/GGN/MMDA%20vs%20Belair%20200.htm%23fnt20http://f/GGN/MMDA%20vs%20Belair%20200.htm%23fnt20http://f/GGN/MMDA%20vs%20Belair%20200.htm%23fnt20http://f/GGN/MMDA%20vs%20Belair%20200.htm%23fnt19


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necessary, appropriate, or incidental for its efficient and

effective governance, and those which are essential to

the promotion of the general welfare. Within their

respective territorial jurisdictions, local government units

shall ensure and support, among other things, the

preservation and enrichment of culture, promote health

and safety, enhance the right of the people to abalanced ecology, encourage and support the

development of appropriate and self-reliant scientific and

technological capabilities, improve public morals,

enhance economic prosperity and social justice, promote

full employment among their residents, maintain peace

and order, and preserve the comfort and convenience of

their inhabitants.

NOTE : Local government units exercise police power ONLY

through their respective local legislative bodies. Ex. SB , SP

Sanguniang barangays.

THE MAYOR does not exercised police power. Take note of that.

MMDA VS Bell Air Village

MMDA here issued a resolution ordering the open up of the street

in the bell air village for the purpose of solving traffic problems.

Can he do that? NO. take note that MMDA is not a local

government unit. Much more it is not a legislative body and has no

legislative powers. It is only a development authority. If it wants to

open up a street it should course it through the local government

of Makati. MMDA is not a local sanggunian.

NOTE: 1STEXAM is on 1stSATURDAY OF January 2013.

Dont say you dont have enough time. You have exactly the

same number of hours per day that were given to Helen Keller,

Pasteur, Michaelangelo, Mother Teresea, Leonardo da Vinci,

Thomas Jefferson, and Albert Einstein. H. Jackson Brown Jr.

Our greatest weakness lies in giving up. The most certain way to

succeed is always to try just one more time. Thomas A. Edison

Ive seen dreams that move the mountains, hope that doesnt

ever end, even when the sky is falling. Ive seen miracles just

happen, silent prayers get answered, broken hearts become brandnew Thats what faith can do ~ Kutless

______

DAY 3 lecture, November 27, 2012

By: Glowing Gloria

EMINENT DOMAIN

The power of the state to forcibly take private properties. Being

inherent power of the state, there is no need the grant of the

constitution or the fundamental law of the land. In fact, if there

was a mention of such power in the constitution, it was for its

limitation. As it is inherent power, this power is superior toindividual rights but it cannot be overlook that individual need

protection against its power and that protection is enshrined in our

bill of rights.

Before the state can exercise the power of ED as mentioned in the

case of PPI vs COMELEC, the two-threshold requisites must be first

determine namely:

- There must be a necessity- there would instances

wherein there is no need to resort into the exervcsie of

ED. Ex. PPI vs COMELEC

- The legal authority to exercised ED

Recit:

PPI vs COMELEC-

( Comelec Space case)

Atty Jumao-as: So the COMELEC demand space from whom?

(Publishers) It was argued by Petitioner it is tantamount to ataking without just compensation. The SC ultimately ruled in this

case that there is no need yet for the comelec to exercise such

power. Why? (there is no necessity- since it was not shown by the

comelec that the petitioner was not willing to sell the said space) it

other class , there would be a necessity to exercise of ED if the

private owner is willing to sell such property.

TELEBAP vs COMELEC

( Comelec Time Case)

The Comelec is demanding this free airtime from whom? (TV and

Radio Broadcast companies/networks) SC ruled that there is no

necessity in the exercise of ED here, why? The subject of thetaking here class in the air frequencies. Air Frequencies are

allotted by the state to those who are qualified. Air frequencies are

not a product. Therefore, air frequency is not a private property.

In other words there is a necessity to exercised ED if there is a

private property-owned otherwise there is no need to exercise

such power.

(Note: in the case at bar, what was subject to

expropriation is the airwaves. SC ruled that what the petition mere

own is the license over such franchise which is a mere privilege

only. Air waves and Air frequencies are owned by the state in view

of the concept of jura regalia. So here no necessity)

WHO MAY EXERCISE THE POWER OF EMINENT DOMAINWe said primarily that it can be exercised by the

legislative department via a LAW. Like police power however this

can also be delegated.

The power of ED can be delegated to the Executive

branch, to the president. This can also be exercised by the LGU via

its sanguniang or the local legislative body. It can also be

delegated to public corporation.

What are public corporations?These are government

owned corporations which are imbued with corporate personality.

They have their own state personality and own corporate powers

example is the NHA, DCWD. It is like these corporation is engaged

in business but is it owned by the government.

ED can also be exercised by QUASI PUBLIC

CORPORATION. A quasi-public corporation, these are actually

privately owned corporation but they are engaged in the business

of rendering public service. Usually more on public utilities. Ex.

PLDT- it is privately own but its service , communication, is public

utility. Why are they allowed? It is because when you collect public

lines, it would require expropriation of private lands. We have also

Davao Light.

NOTE:Unlike police power, the power of eminent domain may be

delegated in the quasi-public corporation.

If this power is delegated, the scope of this authority is

necessary narrower than that of the delegating authority or to the

congress. Other than that the exercise of this power must be

pursuant to strict compliance with the terms of the law delegating

it. Once ED is exercise other than congress, the legal basis must

be a LAW. There must be a law authorizing that body to exercise

ED. Such exercise must be in the terms and conditions stipulated

and provided for by law.


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ESTATE OF SUGUITAN VS CITY

Recitation:

What is the basis for exercise of this power, the legal basis, legal

authority? It is the Local Government code-particularly SEC 19- It

is not inherent power of the local government unit but it is

delegated by the congress via a law and such law is in Sec 19 of

RA 7160 the local government Code.

Section 19. Eminent Domain. - A local

government unit may, through its chief executive

and acting pursuant to an ordinance, exercise the

power of eminent domain for public use, or

purpose or welfare for the benefit of the poor and

the landless, upon payment of just compensation,

pursuant to the provisions of the Constitution and

pertinent laws: Provided, however, That the

power of eminent domain may not be exercised

unless a valid and definite offer has been

previously made to the owner, and such offer was

not accepted: Provided, further, That the localgovernment unit may immediately take

possession of the property upon the filing of the

expropriation proceedings and upon making a

deposit with the proper court of at least fifteen

percent (15%) of the fair market value of the

property based on the current tax declaration of

the property to be expropriated: Provided, finally,

That, the amount to be paid for the expropriated

property shall be determined by the proper court,

based on the fair market value at the time of the

taking of the property.

What are the conditions for the LGU to exercise ED under Sec 19?

First, there must be an ordinance- the ordinance

authorize must be chief executive

Second, there must be for public use- benefit for the

landless

3rdpayment of just compensation

4ththere must have been an offer but the same was not

accepted.

The particular circumstance here, the LGU issued a resolution and

not an ordinance. So SC ruled that the exercise of the respondent

city of ED is invalid in contravention with the law grating them

such authority.An ordinance is a law, but a resolution is merely a declaration

of the sentiment or opinion of a lawmaking body on a specific

matter. An ordinance possesses a general and permanent

character, but a resolution is temporary in nature. Additionally, the

two are enacted differently a third reading is necessary for an

ordinance, but not for a resolution, unless decided otherwise by a

majority of all the Sanggunian members.

There was a ruling in the RTC, that such resolution will suffice

because according to the lower court the compliance of having an

ordinance can be complied or complied by the respondent city

subsequent issuance of an ordinance which is only necessary upon

payment of JC. This is wrong. The LGC required an ordinance. Itcannot be cured by subsequent issuance of an ordinance. Only an

ordinance can authorize the Chief executive to exercise ED. It is

incorrect to say that the ordinance is needed later for the payment

of JC. It cannot pay the JC without the legal authority of exercising

the power of eminent domain. So, here the exercise of ED is

invalid for wanting of legal authority.

ESTATE OF REYES VS CITY OF MANILA

Here, the city executed an expropriation case against the

property own by Justice JB (JustineBeiber) Reyes. The

circumstance here is that the property was sold to a private

corporation. The private corporation was about to evict the

occupants and then the city came. It exercise ED so that it can

give such property to the occupants. There was compliance of theordinance requirement and all the rest requirements. What is the

purpose of such exercise? It is to give out to give land or for land

reform housing program. It was argued by the petitioner, that

despite of compliance of the requirements under the LGC, it is still

improper for the city to exercise such power. SC ruled that, the

LGU, other than the local government code, would still have to

observe other existing and applicable laws. Unfortunately or

fortunately, there is an existing law governoing the expropriation

of private properties- RA 7279 (the Urban Development and

Housing Act of 1992)-

Sec. 9. Priorities in the acquisition of Land Lands for

socialized housing shall be acquired in the following order:

(a) Those owned by the Government or any of its sub-divisions,

instrumentalities, or agencies, including government-owned or

controlled corporations and their subsidiaries;

(b) Alienable lands of the public domain;

(c) Unregistered or abandoned and idle lands;

(d) Those within the declared Areas of Priority Development,

Zonal Improvement sites, and Slum Improvement and

Resettlement Program sites which have not yet been acquired;

(e) Bagong Lipunan Improvement sites and Services or BLISS

sites which have not yet been acquired; and

(f) Privately-owned lands.

So if the government authority would like to expropriate propertyfor socialize housing program, the above-mentioned order must be

complied. It must 1st consider publicly owned lands. And last of

the list is the privately owned lands. Private lands has the last

priority which means that only when all the rest are not available

can it only be expropriated. In this case, the exercise of the

delegated authority is still subject to existing laws. The LGUnits ,

not only the local government code but also other applicable laws.

MCWD VS KINGS AND SON

This case is an example of the exercise of ED by a GOCC

( local water district) under RA 8974. RA 8974 requires the

following: first, its board of directors passed a resolutionauthorizing the expropriation, and; second, the exercise of the

power of eminent domain was subjected to review by the LWUA.

We have here an example a public corporation exercising power of

eminent domain. They can exercise provide they have the legal

basis. The legal basis here is RA 8974 and such law provides for its

conditions. That is what we mean that the delegate exercising ED

is subject to the terms and condition of that law delegating them

such authority.

NOTE: the power of ED is immense, superior and is superior over

private rights and the limits can only be sought under the

constitution.

Limitations of Eminent Domain

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. (Bill of Rights)

Section 9. Private property shall not be taken for public use

without just compensation.

1stthere must be payment of JC


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2nd- if the state takes a private property it must be solely

for public use.

3rdobservance of Due process

THE CONCEPT OF TAKING

Takingunder our own understanding entails the dispossession toones property to the other. But under the legal sense, there may

be taking by the government without actual dispossession of the

property and the title remains in the hands of the private owner.

There is taking in the aforementioned situation because the actual

owner is deprived of the beneficial use of the said property. There

may be no dispossession but there is a burden on the part of the

private owner, that is still a taking.

Republic vs Castellvi

SC here established the 5 requisites in order of WON or not there

is a taking.

1.

The expropriator must enter a private property.2. the entrance into private property must be for more than a

momentary period. "Momentary" means, "lasting but a

moment; of but a moment's duration.- something that is

oindefinte or more or less permanent.

3. The entry into the property should be under warrant or color

of legal authority.

4. The property must be devoted to a public use or otherwise

informally appropriated or injuriously affected.

5. The utilization of the property for public use must be in such

a way as to oust the owner and deprive him of all beneficial

enjoyment of the property.

The government enters the property in 1947, but its start to haveit expropriated only in 1959. When was there taking in 1947 when

it entered the property or 1959? SC said its not on 1947, because

the requistes are not complete no. 2,3,4 and 5

- The expropriator must enter a private property. This

circumstance is present in the instant case, when by virtue of

the lease agreement the Republic, through the AFP, took

possession of the property of Castellvi.

- the entrance into private property must be for more than a

momentary period. "Momentary" means, "lasting but a

moment; of but a moment's duration. The aforecited lease

contract was for a period of one year, renewable from year to

year. The entry on the property, under the lease, is

temporary, and considered transitory. The fact that the

Republic, through the AFP, constructed some installations of a

permanent nature does not alter the fact that the entry into

the land was transitory, or intended to last a year, although

renewable from year to year by consent of 'The owner of the

land.

- The entry into the property should be under warrant or color

of legal authority. This circumstance in the "taking" may be

considered as present in the instant case, because the

Republic entered the Castellvi property as lessee.

- The property must be devoted to a public use or otherwise

informally appropriated or injuriously affected. It may be

conceded that the circumstance of the property being

devoted to public use is present because the property was

used by the air force of the AFP.

- The utilization of the property for public use must be in such

a way as to oust the owner and deprive him of all beneficial

enjoyment of the property. In the instant case, the entry of

the Republic into the property and its utilization of the same

for public use did not oust Castellvi and deprive her of all

beneficial enjoyment of the property. Castellvi remained as

owner, and was continuously recognized as owner by the

Republic, as shown by the renewal of the lease contract from

year to year, and by the provision in the lease contract

whereby the Republic undertook to return the property to

Castellvi when the lease was terminated. Neither was Castellvi

deprived of all the beneficial enjoyment of the property,

because the Republic was bound to pay, and had been

paying, Castellvi the agreed monthly rentals until the timewhen it filed the complaint for eminent domain on June 26,

1959.

The government entered into the property by means of a lease

contract.

NPC vs CA

NPC entered into the property in 1978 and start the expropriation

proceedings in 1992. It was the contention of NPC that taking is

on 1978. Remember, that the determination of taking is necessary

in order to determine the JC compensation, the law requires that

the assessment of the value of JC shall be in the time of taking or

the filing of expropriation case whichever is earlier. SC ruled that it

was on 1992 upon filing the complaint.In this case, the petitioners entrance in 1978

was without intent to expropriate or was not

made under warrant or color of legal

authority, for it believed the property was public

land covered by Proclamation No. 1354.

The requisites of no. 3 is wanting. In this case, there was no

taking at the time, NPC believed that such property was not own

privately and such it was a public domain which is owned by the

state. NPC at that time has no intention to expropriate the land

believing it to be part of public domain. Why not in 1990? What

happen in 1990? In 1990 they attempted to enter into a contract

of sale. And SC ruled that is not the reckoning point. When the

goevrnmnet enter into a contract of sale, is there anexpropriation? NO. no necessity of expropriation because the

private owner is willing to sell the property. Only in 1992 they

exercise ED thus taking took place on 1992 and the value of the

property must be assessed not on 1990, 1978 but on 1992.

December 03, 2012Transcribed by: Marlie Muoz

Last time we are talking about the ELEMENTS OF TAKINGin the

case of

NPC vs CA

When was it that there was taking?

The last case NPC vs CA, it is said there that there was NO

TAKING, the element was lacking, the lack of authority to

expropriate the property because NPC in that case there has the

belief that the property donated or been used is owned by the

public under a particular act or proclamation, so when they

entered the property there was really no intention to expropriate

the property. In fact they vehemently deny the private owners

assertion that there should be just compensation. Thus, in the

case it was not in 1978 there was NO TAKING but it was in 1992.

In 1992, when the state or NPC file petition for expropriation, at

that time they really have the intention to expropriate the

property. They said also that TAKING is not to be understood in its

literal sense, wherein there would be TAKING that you would

dispossesses your property. There would still be TAKING even if

the private owner retains ownership over the property. But if the

private owner retains his property, he is subjected to a certain

BURDEN, wherein he will be deprive of the beneficial use of the

property there is TAKING.


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So the cases give us an example, NPC vs GUTTIERREZand NPC

vs IBRAHIMdecided on 2007 and 2009 and REPUBLIC vs CA.

NPC VS GUTTIERREZ

In this case the NPC intended to use a portion of the property,

take note only a portion of a property for the transmission lines of

the NPC to transverse. The argument in here is that there is no

need to emphasize the POWER OF EMINENT DOMAIN or

PAYMENT OF JUST COMPENSATION because what they intended

to do is only to transverse the transmission lines above the

property and if there will be required to pay it will just be

easement fee for the right of way. In fact, it is according to NPC

that they are not asking the private owner to surrender the title or

ownership of his property. The title remains to the private

owner, only a portion is affected.

So, the portion, only the portion, the only question in this case is

WON an EASEMENT is the proper subject for expropriation.

EASEMENT would only affect a portion of that property but you

retain the title of that property.

Now, the SC said that EASEMENT would be the proper

subject for expropriation in this case.WHY?

Although, the ownership is retained the private owner, the private

owner is deprived of the beneficial use of that property, because

there are CONDITIONS made by the NPC for the use of the

property. What CONDITIONS? One is the private owner cannot

plant and or build on the land under the transmission lines. The SC

even further said that you cannot discount the fact that the

emission of the sum of 220 kilo volts of the electricity it wouldpose the danger of life and limbs of the private owner and his

family. In fact he may no longer use of the property because of

the danger it may impose. The SC said that although there has

been the use of the transmission lines, the private owner retains

the ownership, NPC is not asking for the transfer of the title, there

is still expropriation and NPC is still required to pay just

compensation. What is JUST COMPENSATION in this case? The SC

said that the EASEMENT FEE is not JUST COMPENSATION.

The JUST COMPENSATION would be the value of the entire

property, the deprived property. So, you have here the BURDEN

on the property which is the proper subject for expropriation. If

we understood as layman, there is NO TAKING. That is one

example of TAKING is when there is MERELY a BURDEN andNOT DISPOSSESSION.

Another example is the case of

NPC vs IBRAHIM( 2007)

What happened in the case? They say, the NPC that they

need to sample the water from Lanao lake, the 200 pipes lane.

What NPC did is to dig underground tunnels under the property of

Ibrahim. The argument of NPC is that, this is also not proper

subject from expropriation. WHY? The surface of the property is

not affected. In fact, in some cases like the case of NPC vs CA and

the cases earlier, some property owner that even now that theirproperties were being used. Now, what we have here are

constructions tha

Consti 2 First Exam Coverage

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