Jan 31, 2019 lecture CONSTI2
messages. It also covers wire taps and
Marcus: part 1 0:00-00:23
Section 3 is similar to section to on search and
seizure. Because if you will notice from the
language of uh the uh section it has something to
do with search. This uh particular section should
be understood to be affected by recent legislation
on Cyber Crimes and Cyber uh specifically the
Cyber Crime prevention act. (CCPA).
The first paragraph contains the uh
substance of the section and the 2 nd par has
something to do with exclusion. Exclusionary rule
in essence it is the rule that says all the illegally
obtained evidence either under section 2 or sec 3
(1) must be excluded as evidence because it
cannot be admissible. In par 1 the privacy in
communication and correspondence shall be
inviolable. Ity is not uh a uh uh absolute rule it
admits of exceptions. So therefore the questions
is uh True or False the the privacy in
communication and correspondence is inviolable.
Is it absolute? NO IT IS NOT. It admits
exception and there are 2 exceptions under the
provisions it self;
1. Upon lawful orders of the court
2. When Public safety or order requires
otherwise as may be prescribed by
law.
-It means that there must be a law
that governs it already the privacy of
comm.. the edxception. There
ofcourse the par 2 pertains to the
inadmissibalty of any evidence in
violation of sec 2 or sec 3.
Going back to what we discussed last time insofar
as the DIMAANO case, (ring ring ring … akin un)
involves admissibility of evidence. Although the
circumstances is different. Invasion of Com and
Cor is one kind of search.
Question what type of com and cor is
covered by the provisions?
The provision covers letters and
other methods of electronic eavesdropping.
Then uh we come to RA 10175 the CCPA, what
appears to be contentious appears to be at least
when the ani-cyber crime prev act was being
discussed in Congress, was sec 12, I don’t know
if it became its sec 12 in its final form. Which
provides that law enforcement authority shall be
authorize to collect or record by tech or electronic
means. Traffic data in real time, assic with
specified communications transmitted by means
of Computer systems even without court
authority. So surely if this provision was not
removed in its final form of the CCPA then it must
be an exception to the provisions of sec 3.
Question thus sec 3 allows the
intrusion of privacy of com and cor?
Yes. Under the exception. As a
general rule intrusion to com and
cor is not allowed. The Language
even of the provision is inviolable.
Then it only allowed
1. Upon lawful orders of the court
2. When Public safety or order requires
under the particular law.
Q: When intrusion is sought thru an order
of the court upon what grounds may the
court allow intrusion? The court may order
intrusion based on the requirement of
probable cause in sec 2 art III.
So the requirements of uh an order for allowing
intruision into privacy of Com and Cor is based on
probable cause. It is when you apply, usually the
law enforcement agency applying to the court to
wiretap to intrude into private com or cor, it may
be allowed upon reasonable ground. It may be
allowed by the court. Nad the basic requirement
for the court to allow it is by probable cause. So
why we are in sec 3 why do we go back to sec 2?
Why probable cause again? Because sec 3 is a
form of a search as I mention awhile ago. Alright
what is the menaing of the exclusionary rule
under that par 2 of sec 3. The exclusionary
rule bar admission of illegally obtained
evidence for any purpose an in any
proceedings. Just remember the
qualifications there it bars the admission of
illegally obtained evidence for any purpose
an in any proceedings. Ok. How may evidence
inadmissible be dispensed with? So, it is now in
court. You ask for exclusion of illegally obtained
evidence. You ask the court for an order to
exclude the evidence being presented by the
prosecution. Now how may then the court will
say, alright that is an illegally obtained evidence
it must not be admitted against the accused. If
it’s not allowed so where will it go? In the
Dimaano case, the court orderd the return of the
money, the titles, but it did not order the return
of the firearms that were found in the house of
DIMAANO. So what are we saying here? If the
evidence that was excluded is a contra band then
it must be kept by the court. It must not be
returned to the owner. If the evidence is not, or
as long not illegal then it must be returned to the
owner.
Q: May evidence unlawfully obtained by
private individuals come under the
exclusionary rule. The answer is NO. To
come under the exclusionary rule, the evidence
must be obtained by government agents and
not by private individuals acting on their own.
Sec 4. No law shall be passed abridging the
freedom of speech, expression or of the press.
Or the right of the people to peaceably assemble
and petition govt for redress of grievances.
Sec4 has two mandates, 1. It says that No law
shall be passed abridging the freedom of
speech, expression or of the press 2. the right of
the people to peaceably assemble and petition
govt for redress of grievances.
Q: What does speech expression or press
include?
-It includes every form of expression whether
oral, written, tape or disc recorded. It also
includes movies as well as what is referred to as
symbolic speech such as wearing of armband as
a symbol of protest. Peaceful _________ has also
been included within the meaning of speech.
Q: what are the 2 prohibitions on the
abridgement of the freedom of speech of
expression or of the pres. Abridgment means
curtailment, so what are the 2 prohibitions under
sec 4 under abridgement or curtailment of
freedom of expression. 1. Prohibition of prior
restraint and 2. Prohibition of subsequent
punishment.
Q: What is prohibition of prior restraint meant? It
means official governmental restrictions on the
press or other forms of expression in advance of
actual publication or dissemination. Prior, you
take the cue in the word itself PRIOR. Advance
of publication, hindi pa ngyayare inistop na. ok?
In the same manner what is subsequent
prohibition means? After the publication is
subsequent punishment. The most blatant form
of prior restraint is a system of licensing,
administered by an executive officer, movie
censorship although not place in the same level
of press censorship also belongs to this type of
prior restraint. Yung set board of censors if they
censor of a movie, the act of censoring a movie
is an act of prior restraint. Prohibition of prior
restraint because it is done prior it is shown. So
also is judicial prior restraint which takes in the
form of injunction against publication.
TRUE OR FALSE: Warning on media against
airing of the wiretap communication between the
president and other personalities constitute prior
restraint. T or F. Yes it constitutes constitutional
prior restraint. This was the hello garci tape
where pandak was caught talking to a COMELEC
official and there was advised from Malacañang
to the press not to air or published this particular
tape of pandak. This case reached the court in
CHAVEZ vs. Gonzales. Feb 15 2008.
What is subsequent punishment as an
abridgement of freedom of speech? Subsequent
punishment, the mere prohibition of govt,
interference before words are spoken or publish
would be inadequate protection of the freedom of
expression. If the govt could punish without
restrain after publication so the rule on prior
restrain would be useless. It is only half effective
if govt cannot punish after publication so there
must be a prohibition of subsequent publication.
Q: When the right to free speech and of the
press collides with right of the accused to a
fair trial how may the court dispose of the
conflict?
It may be that, in these 3 cases that we are going
to discuss it may be that rights even guaranteed
under the BoR can clash against each other. So
you would say if its part of the BoR, if it is a right
guaranteed by the BoR then why why there is no
question that it should be allowed. Butn we are
not talking here o the right alone. We are talking
here of 2 rights guaranteed by the BoR clashing
against each other so which one will prevail? Ok.
1st is the administrative matter decided by the SC
June 29, 2001 Sec of Justice Vs.
Sandiganbayan. The case involved the petition
to allow live TV coverage of the trial of the former
president ESTRADA. It is the weighing out of the
constitutional guarantees of freedom of the press
in the right of people to public information on the
one hand. Which rights are guaranteed by the
BoR? And the fundamental rights of the accused
also guaranteed by the BoR. On the other hand
when these rights raised against one another,
jurisprudence tell us that the right of the accused
must be preferred to win. In line with the petition,
the court said that TV coverage of judicial
proceedings involves an inherent denial of due
process rights of a criminal defendant. So which
rights clashed in this instance? It is the guarantee
of the freedom of the press to air the TV coverage
of proceedings; it is the right of the people to
public information also guaranteed by the
constitution as against the right of the accused to
due process and the decision is very clear, the SC
said the right of the accused must prevail.
Another one came the petition for radio and Tv
coverage of the Maguindanao massacre. At first
clash again again this is a clash the same it is a
clash between the right of the people to be
informed and the right of freedom of the press
and the rights of the accused to fair trial. At first
the SC said it is allowed. The live Coverage is
allowed. Why? It is different from the Estrada
CASE because there are too many accuse and too
many witnesses eh sa dami na ng accused
mapupuno na yung husgado. There are 58
victims. So kung di mo I allow e papano magiging
public trial? That was the first decision of the
court. That is the reason why they allow it. But
on reconsideration, (silence) the SC did not allow
live coverage. While the court recognizes the
freedom of the press and the right of the people
to public information which are rights belonging
to non direct parties to the case, the right of the
direct parties to the case who are the accused
themselves, they are the direct parties, should
not be forgotten in a clash among these
competing interest. Jurisprudence would say that
the balance should weigh in favour of the
accused. The SC on reconsideration approached
the case in tact in another site. It differentiated
the right of the non-direct parties (tayo) we are
not involve directly in the case, we are the public,
but we have the right to know. The freedom of
the press, the TV station, the Newspaperman the
reporters they have a right to know. But they are
non direct parties. You compare the right s of the
non-direct parties to the rights of the direct
parties. Who are the accused sino ang mas
lamang? The rights of the accused so that was
how the Maguindanao coverage. 23:02 END
MARCUS EHM
Kate: part 2: 00:23-00:46
The third one involves my very good friend. Ayer
productions vs Capulong. The involved the
production of a movie account in a bloodless
coup where Enrile was a principal figure. Enrile
sought to enjoy day...claiming his rights to
privacy. Petioner ascertained the right to
expression. Petitioner here is the Ayer
Productions who wanted to do the movie.
The ascertained right to expression. The court
said if the freedom to expression must be
balanced to the right to privacy which is
recognized by law as the right to be left alone.
Again, clashing of rights, which are protected,
guaranteed by the bill of rights. A limited
intrusion to a person's privacy has long been
regarded as permissible where that person is a
public figure. And in the information to be
illicited from him or to be published about him
contains matters of public character. Enrile was
a public figure. He had no right to prevent
publication of the story of his participation in the
event. Dapat pinublish nila yon e. It should have
been allowed. Para naexpose kasi Enrile was
hiding. He was not a hero of the Edsa
Revolution. He was very much afraid for his life.
He was hiding in Fort Aguinaldo. It was only
when the coast was clear, tanks was there, the
AFP sided already with tita Cory and everything
that Enrile came out, claiming to be a hero.
They should have allowed the publication the
participation of Enrile.
True or False, the freedom of speech is
absolute?
The freedom of speech do lawfully infringe or
meaning restrain. What is the requirement of
the lawful restrain of the freedom of speech?
Freedom of speech is not absolute. There must
be however be standards for the restrain. So
pinapayagan. Dapat narerestrain. Freedom of
the pres, freedom of expression can be restrain.
How? There must be a standard set for its
restrain. Para bagang due process. The standard
for police power is due process of law and the
equal protection of laws. Then in search and
seizure standard so that you can have search
lawfully is that there must be satisfaction of the
requirement of probable cause. Then again,
intrusion to the privacy of correspondence,
probable cause. Same here with the freedom of
expression. Is it absolute? No. Can it be
restrained then of it's not absolute? Yes. How?
There must be a standard. And the standard for
the restrain...the acceptable standards for the
restrain of the freedom of speech: one, the
dangerous tendency rule, two the clear
and present danger rule and third the balancing
of interest rule are tests to determine validity of
the curtailment of freedom of speech. Alam mo
kung bakit diko makalimutan si Johnny? In 1992
when I was first running for congress, I had a
fraternity brad, General Vallejo, who was
working at the DND in 1992. Enrile and General
Vallejo met, casually. E siyempre pinagmalaki
naman ako ng aking brad. Meron akong brad
from Cagayan sir, sabi niya who is running for
the house of representatives. Who? Si Edgar
Lara. Sabi niya, oh you tell that boy to keep the
little money that he has saved because he
cannot win over our candidate. Paano ko
makakalimutan ang taong ganon?
What is dangerous tendency rule?
The dangerous tendency rule of speech can be
curtailed or punished when it creates a
dangerous tendency to bring about the evil
sought to be prevented by the state. The cue
here is there is a tendency to bring about the
evil that the state seeks to prevent. Dangerous
tendency. Tendency pa lang, danger pa lang,
tendency pa lang kina-curtail na yong freedom
of speech because it has the tendency to bring
about the evil sought to be prevented.
What is the clear and present danger rule
naman? The clear and present danger rule, it is
founded on whether the words used are used in
such circumstances or of such nature as to
create a clear and present danger that they will
bring about the evils that congress has a right to
prevent. Nandiyan na. Clear and present danger
na. Malapit ng mangyari, doon mo palang ika-
curtail yong freedom of speech. That is the clear
and present danger test. What will the court
use? Which test must the court use? There are
cases that use the dangerous tendency rule and
there are cases that use the clear and present
danger rule. Basta ang cue dito is dangerous
tendency, tendency pa lang mangyayari yoong
sinasabi ng expression, pinuputol na yong
freedom. Yong clear and present danger,
hinihintay munang malapit ng mangyari na clear
at present danger. Malapit na, doon palang ka-
curtail-in yong freedom of speech.
The third one, the balancing of interests test
seems to be a newfound test by our SC. It gives
them the power to balance interests coming
from all sides. Ano yong interest nito? Ang
interest nito is to prevent the evil. Ang interest
naman nito is to exercise the freedom of
expression. The court will receive evidence and
balance the two. Whichever will come out to be
more advantageous to the welfare of the people
then that will be what will be followed by the
courts. I want you to read the Diocese of
Bacolod vs. COMELEC. This is not yet discussed
by Bernas in his book. GR No 205728, January
21, 2015. Yong Diocese of Bacolod, naglagay ng
tarpaulin na Team Patay, Team Buhay. You
remember? That has been plastered all over the
newspaper during that time. Yong Team Patay,
those who supported the RH Law. You know
where the Catholic Church sides. It is against
the RH Law. Kaya naglagay sila ng mga
candidates, Team Patay ito. Ito yong mga
bumuto in favor of the RH Law. Ito yong mga
bumuto against the RH Law, ito yong Team
Buhay. And they put it within the premises of
the Archdiocese of Bacolod. Ito yong
background ng case na ito, a very interesting
case that for one thing it was decided by Leonen
and whenever Leonen comes up with a decision,
I like it very much because there are new things
that he brings out. Mga bago. Well sometimes,
kung minsan, you may say it is out of this world
but try to analyze it and medyo magaganda
yong mga nilalalabas niya.
One question, how did the court rule of the
issue of whether the COMELEC has the
competence to limit expressions made by
citizens who are not candidates during
elections? The answer in that case is regulation
of speech in the context of electoral campaigns
made by persons who are not candidates or who
do not speak as members of a political party
which are taken as a whole principally
advocacies of social issue that the public must
consider during election is unconstitutional. So
you regulate that, they are not candidates, they
don't belong to a political party, and at most it is
only a manifestation of an advocacy like the RH
Law, you curtail that, sabi ng SC sa COMELEC,
that is unconstitutional.
The second question regarding that is why?
Because such regulation is inconsistent with the
guarantee of according the fullest possible range
of opinions coming from the electorate including
those that can catalyze candid and robust
debate in the criteria for the choice of a
candidate. That is the answer of the why. Then
the case continued with several questions
more.
May there be a specie of speech by a private
citizen which will not amount to an election
paraphernalia so that it may be validly regulated
by law? Regulation of election paraphernalia will
still be constitutionally valid if it reaches into
speech of persons who are not candidates or
who do not speak as members of political party
if they are not candidates. Only of what is
regulated repeat, only if what is regulated is
declarative speech that taken as a whole has its
or principal object the endorsement of a
candidate only. Only if what is regulated is
declarative speech, one that declares a
candidate.
We were discussing the Civil Service Commission
last semester. We were discussing the issue of
the prohibition of a government employee from
engaging in politics. I said then, for as long as
the government employee will not say, will not
make a declarative speech, will not say vote for
Juan Ponce Enrile, or don't vote for Juan Ponce
Enrile, that is not prohibited and the
government employee is not engaged in politics.
I am still saying that inspite of, there was a
radio program where the guests are coming
from the CSC. And somebody was explaining
exactly what I explained. But he does not
believe of what I said. To him it's more loose.
There was a case daw of a driver, a government
employee who drove for a candidate. And he
said, the driver was removed from the service.
Well, if the facts of the case is as simple as that,
I would say, he must not be removed. There
must have been other facts attendant to that
case that the radio guest did not say. Because if
it's only driving, drinive mo lang e, wala ka
namang declarative speech. Pinagdrive mo lang.
He was removed. I was looking for the
telephone doon sa radio station to participate in
the discussion because I felt that it was
misleading on the part of the CSC to have said
that. Medyo loose e. Basta I stand by what I
told you on my lecture for as long as the
government employee will not make a
declaration, he is not engaged in politics. Yon
nga extreme na nga yong sinabi natin. A
teacher, nag-MC, is that already electioneering?
Strictly speaking to me, no. For as long as in the
process of being an MC, he will not say vote for
ano, vote for that, don't vote for him. But if it's
only to call their name, let us sing the National
Anthem, let us recite the Panunumpa sa
Watawat, something like that, I don't think he is
engaged in politics. Yon ang sinasabi dito. For as
long as the person does not make a declarative
speech. The only prohibition is when that
person, the only regulated is a declarative
speech.
What are the requisites of a valid regulation?
1. Should be provided by law
2. Must be reasonable
3. Narrowly tailored to make the objective of
enhancing the opportunity of all candidates to
be heard and considering the privacy of
the guarantee of expression and demonstrably
the least restrictive means to achieve that
objective.
Another question answered in that case is may
the COMELEC order petitioners who are private
citizens to remove the tarpaulin from their own
property? The absurdity of the situation, said
the SC, is itself is the indication of the
unconstitutionality of COMELEC's interpretation
of its powers. So ibig sabihin niyan, hindi
pwede. They cannot order the petitioners who
are private persons to remove the tarpaulins.
There may be no expressions when there is no
place an expression to be made.
An interesting question, does the message in
the tarpaulin constitute religious speech for the
prohibition of which is a violation of religious
freedom? Ang nakalagay lang naman don, TEAM
PATAY, TEAM BUHAY. E sabi ng petitioners, the
Archdiocese of Bacolod, if you prohibit that, you
are infringing on the freedom of speech.
Religious speech, it is not only a violation of our
freedom of speech, but also of our religious
freedom. Sabi ng SC that the position of the
Catholic Church appears to concide with the
message of the tarpaulin regarding our...does
not by itself bring the expression...of religious
speech. On the contrary, the tarpaulin clearly
refers to candicates classifying them under the
Team Patay of Team Buhay, according to the
respective votes in the RH Law. Are the
expression in the tarpaulin ecclesiastical matter?
Jof Part 3: 00:46-01:09
…..basahin niyo nalang medyo ininsulto ng SC
ang church ditto.
Unprotected speech, there may be
speech that are not protected, freedom of
expression was never been considered as an
absolute right. Some forms of speech are not
protected by the constitution. What are these?
Two types of unprotedted speech, LIBEL and
OBSCENITY.
What is a LIBEL?
A libel is a public and malicious
imputation of a crime, or of a vice, or a defect,
real or imaginary, or any act, omission,
condition, status, or circumstance tending to
cause the dishonor, discredit, or contempt of the
natural juridical person or to blacken the
memory of one who is dead. The two elements
of libel would be: the allegation of discreditable
act, obligation of the church, identity of the
person defame, and existence of malice.
When is speech LIBELOUS?
The speech is libelous when the
imputation is public and malicious.
When is the imputation is considered
public?
When the defamatory statement is
made known to someone who _____________
is driven. If I write you a letter, and dami kung
sinabing putang ina mo, kung hindi ko ipinakita
sa iba, there is no libel, kasi dadalawa lang
naman tayo. Because it is not published. A
libelous remark or writing will be libelous only,
will be crime only if it is published. Kung
dadalawa lang naman tayo eh private naman.
Kung ikaw ang naglabas nun eh problema mon
a iyon. Hindi ko problema iyon, okay?
When is it MALICIOUS?
When the author is prompted by ill will.
The rule of PRIVILEGED COMMUNICATION
The rule of privilege communication
is that a communication made in good faith on
any subject matter in which to communicate
___________ interest or concerning in which he
has a duty is privilege if made to a person who
having a corresponding interest although it
contains incriminatory matter without privilege
would be libelous and actionable. That is the
case of ALONZO VS. CA, cited in Bernas, you
read that and understand what he is talking
about.
Are pleadings privileged?
Under what condition may it be
privilege? The prevailing rule is that parties,
counsels, and witnesses are exempted from
liability in libel or slander, for words otherwise
defamatory published in the course of judicial
proceedings provided the statements are
relevant to the case. It is the case of ARMOVIT
VS. JUDGE PURISIMA, cited by Bernas in his
book. This Armovit here is a practicing lawyer.
Reymundo Armovit. He was the examiner for
Commercial Law during our time in 1974, BAR
74. Ang daming umiyak dian, daming
bumagsak. He was the lawyer of my employer,
and one time, emmediately, a few weeks after
the BAR, after the result came out we saw each
other at the elevator.
Short story
(Oh sabi niya, “I heard that you just
passed the BAR”, yes sir kako naman. “What
did you get in commercial law?”, I got 85,
tumingin sa akin ng ganun, “hindi ka mayabang
ano” sabi sa akin. Hindi na ako umimik. Bakit ko
din ba sinabing 85. Noong tinignan ko iyong
aking grade 78, nakakahiya naman, wala pala
siyang binigyan ng grade na 85. Ang
pinakamataas pala mga 80. Buti nalang pumasa
ako. You know my favorite subject in the college
of law was Civil Law. When we took the BAR
exam in Civil Law, I was one of the firsts who
pass the test paper, siguro pangatlo ako o
pangalawa, yabang ko no? After the BAR exam
noong lumabas ba iyong results, eh di punta ka
sa supreme court para kunin iyong rating, Civil
Law, 60. I almost got disqualified. You know if I
had gotten 70 man lang o 75, I could had made
it to top 10, our number 10 was 80.15 my
average was 79.85. Ayaw ng diyos na maging
top 10 ako. But, you know on second thought,
I’m not complaining anymore. Baka nag-iba rin
kasi siguro iyong landas ng buhay ko, had I
made it to the top 10. Because you know yung
mga top 10, hinahabol yan ng mga law offices,
kinukuha yang mga yan pero iyong buhay nila
duon, muchacho. Taga gaw ng pleadings, etc.
for a number of years until you show your
metal, until you show how good you are. If you
are exceptional, you will slowly rise up the
ladde, but if not, you will find your way going
out. I wonder, baka hindi ako nagging
congressman, immediately after my graduation
in UP, 1970, I went to Fort Magsaysay to train
because I want to be a professional soldier, kasi
advance course graduate ako, UP pa. Yabang.
So nagtrain ako dun, in the course of the
training I almost killed a regular officer. Muntik
kong binarily, actually binarily ko hindi ko lang
tinamaan. You know ang mga taga PMA
mayayabang iyang mga yan. Kaming mga
ROTC, down naman, eh meron kaming mga
ranggo. Iyong ranggo na kinecarry naming sa
training, ranggo rin nila, pareho lang kami, eh
nagagalit sila. Eh bakit raw kami may
______{bikskyum} B kasi yan eh, segunda
kamote, second luitenant, dapat dae tanggalin
namin. Marunong pa kayo. One time we are in
the mess hall, they call Bachelor’s Officers
Quadrants. We were eating lunch, malayo
naman eh, kung eto iyong lamesa mas mahaba
pa hanggang dun. Nandoon kami sa Dulo,
nandito siya. Sumigaw, sabi niya “you get out
from my table”. Eh iyong dalawa kung kasama
bitbit iyong meskit, lumipat, eh ako tinapos ko
iyong aking pagkain. Pagkatapos kung kumain,
binitbit ko tapos dinala ko sa kusina. Tapos
pumunta na ako doon sa mga barracks ng mga
trainee. Kasi we were there to train, mga 18
years old. Abay sumunod, andoon na ako sa
second floor, nakita ko siya, abay mabilis ang
lakad. Papunta doon mismo sa ano. Eh Nakita
ko may naglilinis ng baril, iyong mga sarhento,
armory kasi duon eh, naglilinis ng baril, kinuha
ko nilagyan ko ng bala kinasa ko, pag ganun ko
eh hindi ko pa naituro sa kanya pumutok.
Tinamaan iyong ceiling. Pero alam mo iyong
segund kamote na iyon na taga PMA ang takbo
nia pabalik sa BOQ, hindi mo maituro iyong
pwet. Maya lang konti eto na iyong MP, sabi ng
sarhento, “miss fire, naglilinis kami kanina na
miss fire” sabi niya. Eh d pagkatapos nun wala
na, kamalas malasan nmn ng tinyenteng iyon
nagging Heneral. Naging chief of staff pa ng
AFP. When he was a ______{Bligate}
commander, _____{obligeder} General, I was
already a member of congress. Nagkita kami
duon sa Pamplona, meeting peace something,
meeting. Sabi ko General, we’ve already met
before. Sabi niya “yes sir”. Patay ka ngayon sabi
kung ganun congressman ako uy. Anayway.
Hindi ako nagsundalo, kasi because of that
incident, I lost interest. Hindi nga ako nagfile ng
ranggo eh, because after the traing you are
suppose to file to become a regular officer of
the arm forces, so hindi ako nag file, I went
back to law school. I went back to school, ay
hindi pa pala ako graduate sa UP noon, I
finished my last two subjects in UP summer and
then enrolled in the college of law. Again bakit
ako hindi nagging sundalo, kasi kung nagging
sundalo ako siguro, its either I would be general
now or 6 ft under the ground. Because that was
1970, 1972 was martial law, and all the new
Segundo kamote were all sent to Mindanao,
most of them came home in crates, died there
in Mindanao. Sabi ko anyway how life)
Armovit, pleadings are privilege but to
be so, they must be relevant to the matter
under investigation.
When may criticism of a public figure
constitutionally protected or when not
protected?
When the object of criticism is his
strictly private life, defamatory imputation are
not constitutionally protected. When however
his public acts are the object of criticism,
constitutional immunity applies. True criticism of
a person’s fitness for office is always fairing
therefore privilege. False criticism is not privilege
if malicious, that is when use as a
____________(cloke?) for assaults on person’s
private life.
In 2004, I was elected the second time
as a governor, that was the time that Mamba
lambas me over the radio. For 3 succesive year,
almusal ni mamba iyong murahin ako sa station
sa radio. Hindi ako sumasagot, kasi iyong
kanyang mga sinasa, ewan ko kung ano iyong
mga sinasabi niya. Anyway he is criticizing the
way I mange the…if you would test what he was
saying to what we are saying here it would
seem that he was hitting me under my public
administration. I don’t remember him talking
about my private life, wala naman. But for 3
consecutive years, until 2007. That is why in the
election of 2007 nagsama na lahat sila,
everybody, all the politician of Cagayan against
Lara in 2007. Iyong sinasabi niya na iyon, wala
na siyang ibang sinabi P***** I** Enrile iyan,
have you heard Mamba speak? Basta pag
nagsalita iyan p****** i** mga Enrile iyan. Iyan
ang lagi niyang sinasabi, bakit kaya lagi niyang
minumura ang mga Enrile then it dawn on me
because he has nothing to say puro mura lang,
anyway that’s what he did. So the gang up on
me in 2007. And they are saying Jack Enrile at
one time, said “oh pinulot ko lang si Antonio”
from somewhere and he won over Lara as
Governor. I was within hearing distance, excuse
me sabi ko I did not lose, you did not win over
me, you cheated me in Tuao in 2007, that is the
only reason why Antonio sat Governor because I
was cheated. Anyway back to Mamba, hindi ako
sumasagot, alam mo at one time, ang init init ng
ulo nia P*I* yan sabi niya bakit ayaw niyang
sumagot. “Sir bakit daw di ka sumasagot” sabi
ng mga radio commentator mga otro naman
mga ito, pupunta sa akin “sir sabi ni Mamba
ganito ganyan ganyan,” ineexpect na
magsasalita rin ako sabi ko bayan mon a iyon
sabi kong ganyan eh kaligayahan niya iyan. “eh
bakit kasi ayaw mong sumagot sir sabi niya
minumura ka ayaw mong sumagot” sabi ko
padre kung sasagot ako eh di siya ang nagging
sikat, ngayon hayaan mo siyang magsalita
tungkol sa akin, ako iyong nagiging sikat. Eh
kako kung ganya, hindi siya sikat eh kung
sasagot pa ako, sasabihin ko si Mamba ganito
malalaman pa ng tao na there is such person as
Mamba, iyong tao hindi niya alam iyan. Oh hindi
ako sumagot kaya galit nag galit.
That is the case of Fermin Vs. People,
GR No. 157643 March 28, 2008 just in case
hindi pa nalalagay ni Bernas sa kanyang Libro.
 Then we go to the second part of
Article 4, may the right to assembly and
petition writ impaired.
What are the allowable standards for its
impairment?
Right to assembly and petition for
redress of grievances is equally fundamental as
freedom of expression. Then the standard for
allowable impairment of speech and press are
also for those assembly and petition so pareho
lang iyon. Pareho lang. Clear and present
danger test at saka iyong dalawa pa, parehong
standards for allowable impairment. Iyong mga
cases na cited by Bernas in his book. Maybe 19
kopong kopong, 1907, US vs Aporado mga
tipong ganyan, panahon pa ng Amerikano……
Xtian : part 4 01:09:00 – 01:32:00
Americano ito. But read them anyway because it
demonstrates the standards to be used by the
courts in the impairment of the right to freedom
of assembly and petition.
Evangelista vs. Elcio. The same - Dangerous
tendency rule
Primicias vs. Progoso. 1948.
Which rule between dangerous tendency
and clear and present danger test is more
in keeping with the spirit of constitutional
guarantee of free expression of peaceful
assembly and petition?
It is the clear and present danger. Why?
Because if dangerous tendency, kawawa naman
yung right to free expression or right to petition.
Tendency palang inistop mo na yung freedom of
expression and freedom of assembly.
Pero kung clear and present danger. Hayaan mo
munang gamitin yung assembly and petition
until it is almost dangerous. When it is clear and
present danger. When the evil sought to be
avoided is clear and present. Nandyan na. That’s
the only time that you infringe the right of
expression. It is more liberal for the right of
expression.
The right of the people to peacefully assemble
and petition must be discussed in relation to:
A. Section 18 of art 2
B. Sec 8 art 3 - refers to labor to peaceful
concerted activities including the right to strike
in accordance with the law
C. Section 3 of art 13
D. Section 2,5b article 9
Section 5
No law shall be made respecting the
establishment of religion or prohibiting the
exercise thereof. The free exercise and
enjoyment of religion and worship without
discrimination or preference shall forever be
allowed. No religious test shall be required for
the exercise of civil or political right.
2 clauses that are apparent in section 5
1. Non establishment clause – which
prohibits a law to respect the establishment of
religion or to establish a religion itself
2. Free exercise clause
Under the Spanish constitution of 1876,
Catholicism was the state religion. One of the
immediate effects of the American constitutional
in the Philippines is the denial of the catholic
church of the privileged position it held under
the Spanish sovereign. Corollary to this is the
equal position of the other religion. The
Americans prohibited Catholicism to be the state
religion. But it did not impose a state religion. It
allowed other religion to flourish in the
Philippines aside from Catholicism.
The free exercise of religion was first
guaranteed in the 1935 constitution. How did
this guarantee of religious freedom found
its way into the constitution?
The free exercise of religion was guaranteed
under sec 10 of the treaty of paris. This
guaranteed that the territories seeded to the US
will be secured in the free exercise of religion.
Another effect of the new system is the
elimination of any institution that favors the
union of the church and state.
The text of this section-section 5- is the same in
the 1935, 73, and 87 constitutions. The non
establishment and free exercise clauses express
an underlying relational concept of separation
between the religion and secular government. It
is related to sec 6 article 2 - separation between
the church and state shall be inviolable
The constitutional provision is a mandate
against state intervention in religious activities.
The theology of liberation initiated by the CBCP
in July 1973 qualifies the change understanding
of the church of her role to the world today. It
expresses the church’s concern for society and
for the poor. No longer mainly in terms of
personal alms giving or working in charitable
institutions but especially in terms of its duty to
participate in the building of a social world.
According to Bernas in his book, it enunciates
the expanded mission of the church because of
the expanded provision of the 1973 constitution.
The martial law left the church as the only
forum where a position of criticism can still be
openly voiced.
What is the free exercise clause? What is
it based?
The basis of the free exercise clause is the
respect of the inviolability of the human
conscience. That is why the free exercise clause
which is a freedom under the constitution
cannot be regulated by law. You cannot
regulate conscience. That is the underlying
basis of the freedom of exercise of religion.
Cited by bernas. Reynolds vs US. Adopted the
rule that the free exercise clause completely
insulated the world of belief from state action
relieving however religious motivated action
including expression subject to police power.
For as long as what is exercised is a religious
belief, the state will not intervene. But if these
beliefs are already expressed into action, then it
is something else. As long as it is in the
conscience of a person it is alright. But if that
conscience finds itself in action, then the state
may regulate.
The judicial task in exercise cases is one of
balancing the interest of the state with the
interest of religion.
Look for a citation made by bernas. Cantuel vs
Connectica. The constitutional inhibition on
legislation on the subject of religion has a
double effect. On one hand it forestalls
compulsion by law of the acceptance of any
creed. Freedom of conscience or freedom of
adherence to such religious organization or any
form of worship as the individual may choose
cannot be restricted by law. On the other hand
it safeguards the free criticize of the chosen
form of religion.
Read: People vs. Familiar. An old case.
Demonstrates freedom religion. It concerns sec
34 of old marriage law. Cited by bernas.
Read: American bible society vs city of
manila.
Centena vs. Villalor. The court ruled that
solicitation of contribution in general which may
include contributions for religious purposes may
be regulated by general law for the protection of
the public
Question: May the state impose civic
obligations that may conflict the person of
religious belief?
Arona vs. Secretary of Education, and
Embraminac vs. Division Superintendent
of schools Cebu. It pertains to the Jehova’s
witnesses challenging the order of the DepEd
requiring the children to attend compulsory flag
ceremonies. The court said that if the exercise
of religious beliefs clashes with the established
institutions of society and with the law then
religious beliefs must yield to the latter. The
government will step in. Arona case was
reversed by the Embraminac case. The
court held that the freedom of religion requires
protesting members be exempt from the
operation of the law.
What is the non establishment clause?
Non establishment clause simply means that the
state may not establish or sponsor an official
religion. This prohibits the state from passing
laws which aid one religion, aid one religion, or
prefer one religion over the other. Aglipay vs.
Ruiz, and Autria vs. NNRC.
What is the non discriminatory cessation
of taxes on property used for religious
purposes?
This pertains to Section 5 Article 3 in relation to
paragraph 3 section 28 Article 6. Charitable
institutions, churches and parsonages and
convents, mosques, nonprofit cemetery,
buildings improvements and lands actually and
directly used for charitable or education
purposes shall be exempt form taxation.
What is exempted? The exemption created by
the constitutional provision is only for taxes
assessed as property taxes – realty taxes. The
properties exempted are lands, buildings, and
improvements directly and actually and
exclusively used for religious charitable or
educational purpose.
What is the purpose of the provision
prohibiting religious test?
To render the government powerless to restore
the policy of probing religious beliefs by test offs
or limiting public offices to person who have or
professed their beliefs to some particular kind of
religious belief. This is very old provision.
To allow religious tests would have the effect
formal or practical establishment of a particular
religious faith with subsequent burden imposed
on the free exercise of the faith on non
favorability.
Question: Can the state compel a person to
bear arms in defense of the country even
when bearing arms is contrary to person’s
belief?
If you answer yes, then when the state exempts
a person from military service on religious
grounds, is the state not in effect giving
preferential treatment to that religion? The
constitution prohibits the state from
favoring a religion. If you answered yes they
should be exempt, then you are already favoring
that religion. Isn’t that a violation of the
constitution?
May the state support social action
centers?
While activities of basic Christian communities
and church’s social action centers may not
materially differ from barangay action groups or
of government welfare agencies in motivation
and initial inspiration at least. Church related
activities are arguably religious and therefore
should be zealously protected by the 3 exercise
clause. And since the same activities are
arguably non religious but social and
humanitarian they can be the subject of state
support without violating the non establishment
clause. Therefore there should be conditions or
requirements for government aid to religious
social action centers.
May there be government aid to religious
social action centers?
Yes. And it does not violate the non
establishment clause provided you comply with
the following requirements
1. Government aid must have a secular
legislative purpose, not entirely religious
2. Must have primary effect that neither
advances nor inhibits religion, purely for welfare
3. Must not require excessive entanglement with
recipient institution
When I was still in the Capitol the San jose
multipurpose cooperative, while it is true that it
was organized by priest long long ago it is a
nonprofit cooperative. One time they came to
capitol to ask for financial aid. My accountant
disapproved when it went to her even though I
approved it already. So I ask her why. She said
“san jose” – it is religious. That is prohibited in
the constitution. I told her that that is only a
name. It is not religious. So I asked her
assistant to sign. Pangalan lang naman yun eh.
Carisma Part 5: 1:32 – 1:55 and Jubi part
6: 1:55- 2:18
Then you have the Soledad Escobar case. Ah… A
court interpreter Soledad was found to be living
in without benefit of marriage. May ka live in sya
without benefit of marriage. Then that is against
civil service rules and regulations and a complaint
was filed against her and a case was filed for
dismissal.
This case went through several stages until
finally, in the final final motion for
reconsideration, the Supreme Court said its her
religious belief so let it be.
Kasi noon, sabi nila, it cannot be. They will be
removed from the CSC. I think a second motion
for reconsideration was filed and finally the
Supreme Court was albeit and said it is her
privilege, it is her belief. It is her religious belief.
So she must be allowed. So pwede pala kayong
maglive in basta papayagan kayo ng religion.
Then, alright… Sec 6.
(Sec 6)
The liberty of abode and of changing the same..
ang nagpasikat sa Section 6 na ito is the Marcos
vs Manglapus case. If liberty of abode and of
changing the same, liberty, anywhere, and the
freedom to change where you are to live, shall
not be impaired except upon lawful order of the
court. So again, it is not absolute. It can be
impaired by lawful order of the court.
Then the second shall be, neither the right to
travel be impaired except in the interest of
national security, public safety or public health as
may be provided for by law. So there must be a
law that provides for it. Okay, in order that the
freedom to travel may be impaired, there must
be a law.
Freedom of movement involves two rights, the
movement of abode and the liberty to travel.
Liberty of abode includes the freedom to choose
and change ones place of abode within the limits
prescribed by law. It may be impaired upon lawful
order of the court. A great example of the
allowable order of the court would be a condition
imposed in collection with a grant of bale. Its in
the case of Yap vs. CA cited by Bernas I believe.
Liberty of travel includes the freedom to travel
within the country and outside. It may be
impaired even without a court order. But the
appropriate executive officer is not armed with
arbitrary discretion to impose intake. He can
impose limits only on the basis of national
security, public safety or public health as may be
provided by law.
Then we come to the case of Marcos vs
Manglapus. I think we discuss this already. You
know the background, you know already how the
SC justified the ban by Tita Cory for the travel of
Marcos.
The right to travel was also one of the reasons
why the SC lifted the ban by De Lima of the travel
of Pandak.
The right to life and its posing rights including the
right to travel and remove the temporary
restraining order enjoining de Lima from
imposing the OJ Department Order No. 41.
Sec 7
Sec 7 we said at the onset of the start that it is
only the section that affects only Filipino citizen.
It cannot protect foreigners, only the Filipino
Citizen. The right of every people in information
in any matter with public concern shall be
recognized. Access to official records, pertinent
documents or decsisions etc. shall be accorded to
citizens subject to certain limitations as may be
provided by law.
I think it will be almost 3 years already since the
congress works on a law for the public
information dissemination. It is still pending in the
HOR and Senate and I think the form of
contention are the exception. To what documents
are exempted in the provision. We must realize
that it cannot be also, that all gov’t information
within the reach of all citizens. There may be info,
data, proceedings that is best to be kept within
the walls of a particular office. For security
purposes. I wish that Congress can resolve the
exceptions on the right of information, soon.
Although the executive came up with its version
but it pertains only to the executive. It does not
pertain to the documents of others outside the
executive. And even as far as the executive is
concern, there are still rumblings that the
exception, that there are too many exceptions
also made by the President in its executive order.
The right to access to public documents and
records itself executor constitutional rights. It
does not need a law to implement it. The
provision itself is already prevailing as a
protection of us, a weapon used by the citizen to
obtain information.
In this case, try to look at the case of Chaves vs
Pea Amari GR No., 133250, July 9, 2002, I think
it was already cited by Bernas in his book.
The meat of Chaves vs Pea Amari is the portion
of Section 7 beginning with the second sentence
official re4cords amd to documents and to papers
pertaining to official acts transactions of decisions
such as the research data used as basis for policy
development. Papers pertaining to official acts,
transactions or decisions in the Chaves vs Pea
Amari it said that the documents sought was still
being deliberated on so therefore the SC said
while the evaluation or review is still on going,
there are no officials acts, transactions or
de3cisokns on the bids or proposals. So if the bids
and proposals are already done, then it is only
then that a citizen may file a case or may request
to see or copies of these documents.
What are some of the recognize limitations on the
right to information?
National security, trade secrets, banking
transactions, criminal matters, classified
law, enforcement matters, diplomatic
correspondence laws, cabinet meetings,
executive sessions of either HOR or senate,
internal deliberations of the SC.
Sec 8
The right of the people including those employed
in public and private sectors to form unions,
associations or society for purposes not contrary
to law shall not be abridged. It means the right
to form associations shall be not be impaired
without due process of law.
In Philippine jurisprudence, the right involves
litigations unto areas of associational activities.
Labor communism and communist organization.
With Philippine Association of Labor Union vs Sec
of Labor. It involves the interpretation of Sec 23
of RA 1075. Just read PP vs Hernandez regarding
on the movement, PP vs Tere then United Pepsi
Colas Union vs Ladesma. I believe it is cited by
Bernas.
Then we go to Section 9
Sec 9
Private property shall not be taken for public use
without just compensation.
The constitutional provisions on eminent domain
are Art 3 Sec 9, Art 12 Sec 18 regarding public
utilities, Art 13 Sec 4 on land reform, Art 18 Sec
22 either on abandoned agricultural lands.
Sec 18 Art 12 deals with nationalization or state
ownership of industries for public utilities. It
needs expropriations that transfer of ownership
can only be upon payment fi the expropriation
while Sec 4 Art 13 talks about the just distribution
of agricultural lands subject to the payment of
just compensation.
The right of eminent domain is understood to be
the legit right of a sovereign power to appropriate
not only of public but the private property of all
citizens for public purpose. It is a power inherent
to the sovereignty.
We keep on going back to the inherent power of
the state. Police power, now we are discussing
the power of eminent domain.
The question is: We have enumerated
constitutional provisions on the power of eminent
domain. Not only sec 9 Art 3 but other part of the
constitution.
Question: Are these the permissions of the
constitution that provides for eminent domain?
Of course the answer is no. because the
constitution does not grant power of eminent
domain. It is an inherent power of the
government, and therefore the inherent power of
eminent domain are very much like to the police
power and the power of taxation. Proceeds the
constitution. The powers are already there even
before the constitution.
Then why then are we studying Sec 9 Art 3, Sec
18 Art 12, Sec 22 Art 18, these are merely
provisions that regulate the exercise of the power
of eminent domain.
The questions is: Why are we studying Sec 9, is
this the power of eminent domain? No, it is only
a provision that limits the exercise on the power
of eminent domain.
The exercise of the power of eminent domain is
by traditions lads with the executive. The power
however must be granted by the legislation. The
exercise, the implementation, is by the executive.
It cannot be implemented by the congress
although the executive cannot implement it
without a power. Congress again gives the
power. Therefore, the authority, the exercise of
the power, the power is granted by the
legislation, it is implemented, executed by the
executive. Once authority is given to exercise the
power of eminent domain, the matter ceases to
be wholly legislative. The executive might then
will decide whether the power will be invoke and
to what extent.
The power of eminent domain may also be
conferred upon municipal government an d othr
government entities., this is provided clearly and
there are already several decisions of the SC that
recognizing this. It is clearly provided in the local
government code.
As to the legislature, the power of eminent
domain is inherent for gov’t agencies, local
government and public utilities, it is only a
delegated power. In the hands of the Congress,
the scope of the power is like the scope of the
legislative power itself, plenary. It is abscond as
the scope of the police power itself. It thus can
reach every form of property which the state
might need for public use.
The delegated power of eminent domain of the
local government is not a power of eminent
domain but of inferior domain, a share merely in
eminent domain. Read the case of the City of
Manila vs the Chinese Community of Manila. It is
an old old case but still demonstrate the exercise
the power of eminent domain.
In early 1900, the City oif Manila move to
expropriate a portion of the chinese cemetery to
open a street through it yun na yung rizal avenue.
Then gustong iappriopriate yung portion nay un
kung saan dadaan yung rizal avenue. Umayaw
yung Chinese Cemetery. The court said that the
chinese cemetery open for public is already in
public use and no part of it could be taken for a
oublic use under a general authority. But if the
legislature should grant the expropriation, the
courts will have the authority to inquire the
purpose of legislations. The court suggested to
the city of manila how to go about it. You are
doing it under a general power of expropriation
which cannot be done. But sabi ng huisgado, if
the legislation will give you the authority to
expropiroate it than we cannot do anything, so
what did the city of manila do? They went to the
legistaktue and ask for an authoruity to
expropriate then uit was expropriated. So
therefore, they were able to build a road. Then
after the legisgkatrue pass a law in giving the
authority of the city of manila to expropriate the
property.
The two constitutional limitations in the
power of eminent domain. Found in Sec 9.
a. Public Use
b. Just Compensation
The requiste on the exercise of pwero of eminent
domain are the taking of private property, the
taking must be for public use, there must be a
just compensation.
What is public use?
It is not equivalent of use by the public. It means
public usefulness. Utility or advantage of what is
productive of general benefit. So that any
appropriating of private property by the state
under its right of eminent domain for purposes of
great advantage to the community’s taking for
public use. The concept of public use is as broad
as public welfare. As broad as the expansive and
ever expanding scope of police power.
The taking of private property in subdivision for
resale for land reform is for public use as hekld in
Mataas na lupa vs Dimayuga. I think this was
cited by Bernas. 1984 case.
Expropriation for socialize housing is for public
use Sumulong vs Guerrero 1987 so its
expropriation for the construction of irrigation
canal 1988.
The expropriation of the brith place of Felix
Manalo. How did the court resolve this? Read it in
Manisca vs CA GR 106440.
Then what is meant by JUST COMPENSATION?
It is just and complete equivalent of the loss
which the owner exproriated and has to suffer by
reason if the expropriation. The compensation
given to the owner is just, it reseals for the
property a sum equivalent to its market value.
Market value is the price which the property will
command if the reseller is not bound to sell and
the buyer is nit bound to buy. This si a definition
given by the deliberation of the constituitional
provision.
A statutory determination of just compensation
will only be a prima facie assessment. In the end,
the final determination of the compensation will
be made by the court.
Then who are entitled to just compensation? It is
not only the owner of the property who is entitled
to just compensation. It also includes all those
who has lawful interest on the property to be
condemned including a mortgagee, a lessee, a
vendee, compensation under executor function.
Every person having an state or interest at law or
equitee in the land taking can be subtitled to
share in the award. Entry may be made by the
expropriator even prior to actual payment of just
compensation. What is merely required is that
deposit is made of the provisional value of the
property.
As a general rule, the value of the property
expropriated is determined as of the time of filing
of the complaint for expropriation. This is
because the filing coincides with the taking.
However, it is consistently ruled that
compensation for property expropriated must be
determined as of the time the expropriating
authority takes possession of the property and
not as of the time of institution of proceedings.
This is the case of Republic vs Sarabia GR
157847.
This is ti reconcile the law applicable when there
is taking before the filing of the proceeding. So as
a general rule, the value of the property
expropriated is determined as of the time of filing
of the complaint because as a general rule, the
filing coincides with the taking. However, the
case of Republic vs Sarabia, it is not the
time of filing but of the time of entry of the
person expropriating.
Alright, the Secretary of the Department of Public
Work vs Spouses Heracleo and Ramona Tecson
GR 179334.As a backgrounder of this case, it
would seem that the owner of the property
forgot, it took a long time to get the just
compensation. And the government said there is
laches already, there is waiver because they
failed to exercise their right. The SC said it can
never be waived, it can never be subject to
laches. The owner of the property must
always be compensated. That is the gist of
the case.
The next question is: if it took a long time
for the compensation to be paid, then how
much should the compensation be?
Likewise, the case of Republic vs Heirs of Borbon
and CA GR 165354, the background of this case
is that there is a property expropriated but it was
abandoned. Issue: must the expropriator pay
from the period of its occupancy even if the
expropriation did not push trough. Yes, he must
pay.
Just compensation and expropriation for
land reform.
There is a deliberation in the ConCom although it
did not find its way to the constitution that just
compensation for expropriation for land reform
can be less than the market value. Why? Because
land reform is both an eminent domain act and a
police power act.
Expropriation for resale to landless.
What is the Guido-Baylosis cases? Discussed by
Bernas. In the Guido-Baylosis cases,
expropriation must be for landed state only. This
was abandoned in Tuazon vs Land Tenure
Administration. So the Guido-Baylosis case is
known as the area test, must be huge landed
state. But in the Tuazon, next impression for the
sale for validations of landless farmers is a social
justice. So even if it is only a small estate, a small
land, small hectare, it can be expropriated for
distribution to the landless.
Judicial Review
The exercise of the power of eminent domain is
always subject to judicial review. Judicial review
of the valuation of the property made by
assessors is proper. Even when there is a
statutory determination of just compensation, the
courts may still review even the adequacy of such
determination. When expropriation is done not
directly by legislative authority but by another
government agency or by a municipal
corporation, by virtue of an authorizing statute is
neither specifies the purpose of taking a property,
it is subject to judicial review.
We are talking of two things here. We are talking
to valuation of property subject to expropriation
and the exercise of eminent domain. If the
exercise of eminent domain is done by the
legislature itself, then the courts may not
question or may not pass upon the exercise of
legislature of power of eminent domain. But when
the expropriation is done by a municipal
corporation or another government agency in
virtue of an authorizing statue, then it is subject
to judicial review.
The valuation will always be subject to a judicial
review even if there is a legislative or statutory
determination of the valuation, it is always
subject to judicial review. But the exercise itself
of the power of eminent domain whether it is
subject to judicial review depends on who is
exercising it or by virtue of which law. If it is
directly by the legislature, the property to be
expropriated is not subject to judicial review. If it
is a municipal corporation, another government
agency, it is subject to judicial review.
Can res judicata be availed of in
expropriation case?
Res judicata means finality of judgement. What
instance were res judicata may be demonstrated?
It is when a property is a, when there is a
municipal corporation for example or expropriator
filed a case in court for the expropriation of a
particular property and for whatever reason it
was dismissed by the court, then if its idismissed
by thb court within a specified time, that becomes
final and executor. So that it if is final and
executor, we say that res judicata sets in. it can
no longer be opened. In ordinary cases but not in
expropriation case.
The very nature of eminent domain as an
inehernt power dictates that the exercise of the
power is not absolute and unfettered by the prior
judgement of res judicata.
Regulation were substantive.
Regulation is police power taking this eminent
domain. By police power, property is regulated.
There is a transfer of ownership. By eminent
domain, property is taken. There is transfer of
ownership. Regulation is not. Taking must be
compensated.
When a property interest is appropriated and
applied to some public use, there is compesanble
taking. When a property ineterst is merely
restricted, its continued restricted use will be
injurious tp public welfare or when property is
destropyed because of the continued existence of
property will be injurious to public interest, teher
is no compensable taking. The entry of the Depo
earth savers vs Secraetary 2006 case, when the
entry into private property is not a simp;e right of
way which is ordinarily allowed, permissions of
the civil code but of it is for mining activities,
there is already a compensable taking.

Republic vs Andaya

When the right of way enforce by the statute in

making the dwelling property unuseable, just
compensation is due.

When municipal property is taken by the state,

compensation is required if it is patrimonial
property of the municipality. That is property
acquired by it with its private fund in its corporate
or private capacity. A property located in a
municipality, if the state woikll get it, will it pay
compensation? It depends. If it is a patrimonial
property of the municipality then the state must
pay compensation. But if it were a property of the
state made use of only by the municipality, then
the state need not pay compensation.

The essential requisites for the exercise by local

government of the power of eminent domain are:
a. There must be an ordinance authorizing
it
b. The exercise of for the public use
c. Just compensation
d. There must be an offer previously made
and the same was not accepted.