Symbolic
- providing principles/jurisprudence
-guide for further decisions
-even if the case is moot and academic the court may still hear the case to perform their symbolic function
Judicial review
Requisites (so that there will be no encroachment of power)
1. actual case or controversy
-must be justiciable/ ripe for adjudication
JUSTICIABLE VS POLITICAL QUESTION
-justiciable
= involves rights that are legally demandable and enforceable
= must be related to violation of one’s right which is based on existing laws or the constitution
-political
= wisdom or soundness of a law
Gen Rule: judicial review is only for justiciable questions
Exception: political questions can be addressed if there is a grave abuse of discretion amounting to lack or excess of jurisdiction
-actual= must not be premature or moot and academic
Gen Rule: cases must not be moot and academic
Exception:
1.if the case if capable of repetition yet evading review
2. if there is gave violation of the constitution
3. if the public interest is involved (paramaount)
4. if there is a need to issue a guide for the bench and bar
*recall lesson about declaratory relief
- raised by proper party/ legal standing/ locus standi
-direct injury principle (actual)
-if you are in imminent danger of being injured (potential)
What should a petitioner bring?
a. Private citizen
-must suffer injuries
b. Taxpayer
-act complained of must involve waste of public funds
-funds must be raised through the power of taxation
c. Legislature
-would amount to usurpation of his rights as a legislator
d. Voter
-should involve election law
-must affect your right as a voter
-must be a registered voter
Exceptions:
a. Case of transcendental/constitutional importance
b. What is asserted is a public right
c. Suit is instituted by ways of facial challenge
- raised at the earliest possible time
Complainant- when you file the complaint/ pleadings
If the opposing party raises it- during the trial
Exceptions:
a. Criminal cases- any time
b. Civil cases- only if the relief sought could not be resolved without resolving the constitutionality of the law
c. If it pertains to jurisdiction of the court
*if a case is filed by the ombudsman and you appeal it in the CA questioning the validity of a law= it is still considered as earliest possible time
- lis mota
-the ultimate issue
-if the issue can be resolved on other grounds the court must do so
Double negative declaration= states that the law is not unconstitutional
Votes needed to declare a law as unconstitutional= majority of the members who participated in the deliberation
-a vote of 5 at least (coz 7 members is no longer a quorum)
Modern vs Orthodox view
Orthodox- as if the law never existed
Modern- law is merely voidable
-must recognize its effects when it is still not declared invalid
Partly unconstitutional
-yes if the law it self provides for a reservation/separability clause
-if it can still stand on its own w/out the invalid part
Rights of individuals are regulated by the state through:
1. police power
2. eminent domain
3. taxation
-inherent/inborn to a state
Bill of rights
-balances the rights of the individuals and the authority/power of the state
Police Power
-power of state to pass rules and regulations, enact laws for the promotion of the general welfare
-most pervasive, governs a person from womb to tomb
-least limited among the three inherent powers
-cannot be the subject of a contract
Legal basis
- Welfare of the people is the supreme law
- Individual benefit is subordinate to the interest of the greater number
Test for validity
- Lawful subject
-the objective must be for the promotion of the general welfare (public safety/health/etc)
-for the community not an individual or a group
- Lawful means
-must not be contrary to law or oppressive to the rights of individuals
See separate page for notes in cases regarding this!
Who may exercise police power?
- Congress
- President
-based Sec 23 Art 6
-only in cases of war or national emergency
-there must be a declaration of a state of war to be determined by
congress: joint session but voting separately
president: as commander in chief of armed forces
BUT there must be express grant of emergency powers in the form of a law for the president to be able to exercise such power
- president should be guided by the declared policies given by congress in granting the emergency power
-limited time only
if the calamity/emergency ceases then the power ceases
if congress will issue a resolution (signature of the president is not needed) withdrawing such power
if not withdrawn earlier it will last until next adjournment of congress
National emergency
-too sudden, affecting the nation, a calamity too serious
- Admin bodies
-agencies under the control of the president who are tasked to enforce the law (dept of finance/energy/ etc)
-promulgate IRR or implementing rules and regulations (subordinate legislature)
-do not make laws but rules and regulation, law execution rather than law making
-must pass the completeness and sufficiency of standard test (recall consti 1)
- LGU
-cannot pass laws contrary to existing laws (constitution and statutes)
-limited only within its jurisdiction
-must not be oppressive upon rights of individuals
- People in general
-may propose amendments to the constitution or pass local statues through initiative and referendum
-RA 6725 provides the guidelines/procedure for such initiative and referendum
Votes needed:
Law on local legislation- 2000 petitioners
Province- 1000
City- 500
Municipality- 100
Brgy- 50
*should not be as often as more than once in 5 yrs
Police Power using Taxation and Eminent Domain
Eminent Domain
Example: Your house was destroyed to allow the fire truck to pass to be able to control the fire. You are not entitled to just compensation because what is exercised is police power, a destruction out of necessity, and not eminent domain. But the owner can claim money from the survivors under the principle of solutio indebiti.
Taxation:
Example: Government imposes high taxes on beer, cigarette, imported goods, etc.
How does due process guarantees to safeguard the public rights?
-the law must be reasonable
-a hearing before a person be deprived with liberty nd property rights.
-to protect from arbritrary detention.
Equal protection of laws – regardless of status, appearance, religion and sex
-law be applied uniformly.
-No discrimination/ no favoritism
Police Power vs Non impairment clause
-congress is prohibited from passing a law which will change or modify any existing agreement.
-but police power prevails over non impairment clause
Ex: 100/day then a law was passed to change min wage to 500/day. Is the application of the new law retroactively valid?
Yes because the law was passed in exercise of police power.
Eminent Domain
-regulates right of property/ ownership of property
Legal basis
-all lands an resources belongs to the state
-presupposes that the taking is against the will of the owner
Who exercises power of eminent domain?
- Congress because for every expropriation there is appropriation and congress is the one who makes appropriation
- President – CARP
- LGU
- Private Corporations engaged in the operation of public utilities (MCWD, MERALCO??)
-the question of whether or not the taking is lawful or in consonance of the constitution is beyond the judicial inquiry (it is a political question) if it is exercised by congress
-BUT if exercised by Pres, LGU and Private Corps can be subject to judicial review
Requisites:
- Taking of the property
-can be disposition of physical possession or if the property is still owned by the person but he can no longer use it
-only private property can be the subject of expropriation
Entry must be for more than a momentary period
*Republic vs Castellvi (@ book)
*Contract of lease = momentary period only
Not considered as taking
Ïf the court has to determine just compensation, how will the price of the lot be computed? From the time of entrance of gov. or from the filing of expropriation proceedings?
Price at moment of taking should be used.
Taking is usually reckoned from the time of filing of expropriation proceedings
Gov. can’t take property without a Writ of Possession issued by the court
In instances where the owner allows the the gov. to permanently enter/occupy his/her property, taking should be reckoned from the time of actual entry, whichever comes earlier.
Expropriator must enter a PRIVATE PROPERTY
Private property – owned by someone in his private capacity
Not properties owned by government in its proprietary capacity
Subject of expropriation:
- Anything within the commerce of man
- Can be bought or sold, Tangible or intangible, movable or immovable
- Ex. Land, services, shares of stocks,
Exceptions:
- money,
- choses in action – actions for collection of money
*Republic vs PLDT
- services can be a subject of appropriation
Government properties:
+ Owned through sovereign capacity – no need for expropriation
+ Owned through private capacity – can be expropriated with just compensation
Property utilized for public use
Public use – anything used by the public
- Anything that directly/indirectly redounds to the benefit of the public
*Ardona vs Reyes
Golf club – inc. tourism – redounds to benefit of the public = is for public use
For Relocation of squatters – low cost housing is a duty of gov. = public use
Can the gov. Take a property already devoted for public use for another public use? Ex. Cemetery to a low cost housing subdivision
If national gov. – YES; power is plenary
If by delegate (ex. LGU) – NO, except when there is an express grant of authority from the national gov./ congress specifically allowing them to expropriate a particular property
*Jesus is Lord
Just Compensation
If the owner and the gov. can’t agree on the price – file for specific performance
Expropriation case for the purpose of just compenatios is only used if from the very start there was refusal to expropriation of the property
Constitutional Basis: Sec 9
“No property shall be taken for public use without just compensation”
Just compensation = fair market value + (consequential benefits – consequential damages)
JC = FMV + (CD – CB)
Just Compensation [JC]
Fair Market Value [FMV]
- Value of the property whereby the seller is not compelled to sell neither the buyer is compelled to buy
- Price that may be agreed upon by the parties willing but not compelled to enter into a contract of sale
- Consider size, location, improvements, potential, area, adjacent properties, possibility of improvement
- Full equivalent value of the property
- How much loses the owner will suffer because of the taking
Consequential Damage [CD]
- Lost income / injuries due to the taking of property
Consequential Benefit
If CD = CB, court will not consider CB
JC = FMV + CD
If CB > CD, ignore CB
JC = FMV + CD
* EPSA vs Dulay
Determination of Just Compensation is a Judicial Function
Congress may initially estimate the value but ultimately it is the court that decides
Just Compensation is determined by the courts using the above formula, other factors, and their discretion through a hearing
Parties present evidence inc. sentimental value
If many properties/ many owners are affected:
Commissioners are appointed to receive evidence from owners and make recommendations on the value of properties, however the court has the final say.
Controversies
*Some laws determines just compensation
Ex. In the Agrarian Reform Program, DARAP determines value of the land.
The SC says: there is no conflict here, the DARAP initially determines the price of just compensation using the law as guidelines. But if someone objects, owner can appeal to court, and court ultimately decides.
Stages of Expropriation Case
1. Writ of Possession
Issued after an expropriation case so gov. can enter property
only issued after a deposit of 10% of estimate of JC (rule 67)determined by law.
Exception: expropriation For national infrastructure (RA 7984)
Requires a deposit of 100% of BIR zonal evaluation
2. Determination of final JC
Depost/initial payment will not prejudice the hearing for determination of just compensation
-Allow defendants to present evidence as to the actual value of the property (no taking without hearing)
-court appoints commissioners to receive the evidence and RECOMMEND to the court how much the just compensation is
Court is not bound by such recommendation for they have the final decision as to what amount to give
-payment should be in form of:
1. cash
2. bonds in the bank (usually given in CARP cases)
3. tax credits
Which period should a person is paid for just compensation?
-prompt payment is required
-upon finality of the judgment in the expropriation proceeding, the government must pay within 5 years otherwise the person may recover his property
Can a person recover a property expropriated if no payment has been made yet?
(note: some people would not accept payment so that they would be able to recover the expropriated property)
Gen Rule: NO!
-only if within 5 years after finality of judgment the government would not be able to pay
Can a person recover the property after full payment of the government, however the property is not used for the purpose it was intended?
-It depends if the expropriation has no condition.
Without condition/ absolute= can’t recover the property
With EXPRESS condition (if not used for intended purpose owner can repurchase) = can recover
Can the owner recover interest and taxes that the he paid for the property expropriated?
-Yes if the owner makes a claim otherwise it is deemed waived.
12% per anum for interest
Is the collection of parking fees in the mall legal?
-Yes, because to rule otherwise would be tantamount to taking without just compensation.
Due process= hearing before taking
Equal protection= must be no discrimination/ must apply to all persons subjected to same circumstances
Non impairment clause= eminent domain prevails over non impairment clause
Taxing power of the state
-power of the state to raise revenues for support of the government
-no taxes/revenue= no government= no people
-should not be used to destroy the source of revenue unless used as police power
-don’t kill the duck that lays the golden egg
Legal basis:
-to contribute for the support of the government because if given the choice people will not give freely
-necessity to have a government
Who exercises taxing power?
- Congress (inherent)
- President (tariff power)
-need express grant of congress
-must be within the framework of economic development
*universal charge is a police power not taxing power
3. LGU- including the barangay
-does not need express grant from congress because the constitution itself provides for such power
-SEC 5 ART 10 of the constitution is self executing
- can tax national government instrumentalities (branch of national agencies) found in their territory to be autonomous and to gain revenue
-in case of doubt construe it as against the taxing power of LGU and in favor of the national government
-those properties acquired in the proprietary capacity/ private property can be subject to tax but those acquired in sovereign capacity cannot be subjected to tax
*private entities maybe tasked o collect taxes but not impose taxes
*taxing power should not be exorbitant/ confiscatory
*it should not be used to destroy the property of a person except if used as a tool in POLICE POWER to protect public welfare
Double Taxation
- constitution is silent
-a person or property is taxed twice or more by the same taxing authority, same purpose, same period, same subject (SAPP)
-it only becomes unconstitutional if it violates the equal protection clause
Characteristics: uniform, equitable and progressive
-uniform: situated under the same circumstances
-equitable: according to the capacity to pay tax
-progressive: as income increases the tax rate also increases
In case of doubt as to if a person is subject to tax construe it as against the taxpayer and in favor of the state.
*Tax exemption by congress: needs majority votes of members of congress
*Tax treaty by president: 2/3 votes of members of senate
TAX EXEMPTION provided by CONSTITUTION
- Religious and charitable institutions (Sec 22)
-limited to property tax
-must be actually, directly and exclusively used for religious purposes
-even if the land is not owned by the church it is still exempt to property tax (but the rent of the church is subject to income tax)
-donations during offertory are subject to tax
- Educational institutions which are non stock and non profit
-property and revenue is exempt from tax
*proprietary educational institutional unless otherwise provided by law they enjoy the same exemption
Ex: Cebu has a law providing that such proprietary institutions be taxed so they should pay.
If there is no law then they are exempt.
Due Process of law= must not be confiscatory
Equal protection of clause= uniform, equitable, progressive
Non impairment clause= taxes prevails over contracts or non impairment clause
Tax exemption can be revoked if the grant is gratuitous or out of generosity.
Ex: personal exemption in income tax can be revoked
Tax exemption cannot be revoked if the grant is onerous or for valuable consideration.
Ex: companies in export processing zone are exempt from tax for the 1st 5 yrs, such exemption cannot be revoked
Due process of law
Civil rights
- enjoyed by both citizens and foreigners
Political rights
- enjoyed by citizens only
Socio- economic rights
- to improve a person’s way of life
- enjoyed by both citizen and foreigner (subject to limitations set by law)
Rights of the accused
= to sum it all up, ones right to life, liberty and property
= refers to both natural (life, liberty and property
and juridical persons (right to property only)
Aspects of due process
1. substantive
-refers to the law itself
-law must be fair, just an reasonable
-check the requisites in exercising a valid police power, eminent domain and taxation
-the law must be clear (not vague or over breadth)
-laws must be published (not dispensable)
2 Doctrines
-used to challenge a law by its face (facial challenge)
-the rights of the litigants need not be applied to question the validity of the law
-applicable only to laws regulating freedom of expression
- Void for Vagueness
-law that needs details
-not comprehensible to an ordinary person
-cannot be applied to penal laws
b. Over breadth
- covers everything, applies to freedom of speech
-too encompassing, no parameters
2. procedural
- hear me first before you strike me
- one must also know the judge
- a judge must inhibit if a party is his 3rd degree relative
- if the judge is the previous lawyer of a party he must also inhibit
Can be:
a. Judicial
*civil and criminal cases
-court must be competent and impartial
(rules of court on inhibition)
-court must have jurisdiction over the person of the defendant
Court is obliged to inform the defendant so that he can present his evidence
Defendant is informed through summon which is given:
1. personal service- handed personally to the defendant
court acquires jurisdiction as soon as the defendant receives the summon
the defendant has 15 days to answer the summon
2. substituted service of summon- serves the summon to the representative which must be of age and of reasonable mind
3. publication of the summons- in a newspaper of general circulation
-follows the principle that accessory always follow the principal,
- Example: if land is in Cebu, the owner is also in Cebu
-has 60 to 90 days to file answer to the summon
In personal action- only the defendant is obliged to comply
-can only be done using personal service or service of summon
In real action- involves real properties like lands
-can be served using personal service, substituted and publication of the summons
Can a personal an action become real?
In quasi in rem action
Real property is attached so that the court will acquire jurisdiction over the property and be able to use the publication of summons
-defendant must be given the chance of hearing
If defendant will not answer within the given period of time the plaintiff can move for the declaration of the defendant in default
-the defendant has no more personality/legal standing, he cannot participate in the proceeding
-defendant can ask the court to lift the declaration in default
-if defendant is declared in default, the court can start receiving evidence of the plaintiff
-hearing can be a trial type of hearing or a pleading
-plaintiff presents evidence/witnesses first and the defendant will conduct a cross examination,
if the defendant will postpone cross examination and the witness dies, the testimony of the witness can still be used because it is the defendants fault why they are not able to conduct the cross examination
-if the case is nuisance per se then the hearing can be dispensed with
Ex: if a mad dog attacks you, you can stop/kill it then and there
-judgment must only be given after a hearing
b. Administrative
*administrative and disciplinary actions against students
CASES ON POLICEPOWER
What may be regulated under the Police Power?
1. Lawful subject: anything which touches on the interest of the public (refer to the subsequent cases)
2. Lawful means: reasonably necessary to achieve the subject. (refer to the subsequent cases)
Note: lawful subject: public safety
Lawful means: three-flunked rule
· 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 the medical 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 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.
A person cannot insist on being a physician if he will be a menace to his patients. If one who wants to be a lawyer may prove better as a plumber, he should be so advised and adviced. Of course, he may not be forced to be a plumber, but on the other hand he may not force his entry into the bar. By the same token, a student who has demonstrated promise as a pianist cannot be shunted aside to take a course in nursing, however appropriate this career may be for others.(DECS vs. san diego)
Note: lawful subject: public safety
Lawful means: 500 meter gas station rule
· It is a well recognized function of the police power to promote the public safety by regulating dangerous occupation, restraining dangerous practices, and prohibiting dangerous structures.
The storing handing, and use of inflammable and explosive substances, being attended with danger, may be regulated under the police power. Thus the explosion of fireworks may be prohibited; and it is within the police power of a municipality, when it is deemed necessary for public safety, to prohibit the blasting of rocks with gunpowder within the city limits without the written consent of the board of aldermen.
Cities and towns have power, under the general welfare provisions of statutes and charters, to enact reasonable ordinances relating to the selling and distribution oil, gasoline, an other petroleum product, within their boundaries, defining where and how filling station may be constructed and operated and regulating the use of right ways across sidewalks to such stations; and a vested right cannot be asserted against the proper exercise of such police power.
An ordinance forbidding the granting of a permit or license for such a station in any location where, by reason of traffic condition or fire hazards, it would imperil the public safety, or authorizing the denial of the same if such station is found to be against the public interest, is a proper exercise of the police power, and is not invalid as denying the equal of the police power, and is not invalid as denying the equal protection of the law or leaving the granting or refusal of the permit to the arbitrary will of the municipal official with the issuance thereof. (42 C. J., p. 1306; State vs. Fleming, supra.)
According to the above-cited authorities it is evidence that the municipal board of the City of Manila had the power to enact ordinance No. 1985 by virtue of the police power delegated to it by the Legislature, and consequently, said ordinance is valid and binding.(Javier vs. Earnshaw).
Note: Lawful subject: public morals
Lawful means: registration in motels must be in full view in order to crash out clandestine entry and therefore shutter prostitution and adultery.
· “There is no question but that the challenged ordinance was precisely enacted to minimize certain practices hurtful to public morals. The explanatory note of the Councilor Herminio Astorga included as annex to the stipulation of facts, speaks of the alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part to the existence of motels, which "provide a necessary atmosphere for clandestine entry, presence and exit" and thus become the "ideal haven for prostitutes and thrill-seekers." The challenged ordinance then proposes to check the clandestine harboring of transients and guests of these establishments by requiring these transients and guests to fill up a registration form, prepared for the purpose, in a lobby open to public view at all times, and by introducing several other amendatory provisions calculated to shatter the privacy that characterizes the registration of transients and guests." Moreover, 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. (Ermita-Malate Hotel Operators Assoc v. City of Manila)
Note: Lawful subject: public health and safety
Lawful means: all 1st run theaters/ cinematographs should register their seating capacity with the city treasurer.
· “To the foregoing must be added, and this is of common knowledge, that the films which are shown for the first time attract a large attendance, and the theatre or cinematograph, whether it is first or second class, presenting shows for the first time, would be suffocatingly overcrowded if the number of tickets were not limited. This is the reason for the prohibition of the sale of tickets in excess of the seating capacity. The prohibition applies with equal force wherever the same reason exists, that is, to first and second class theatres which show films for the first time.” (pp v. chan)
Note: Lawful subject: public welfare (affordable drugs)
Lawful means: generics drugs act
· The prohibition against the use by doctors of "no substitution" and/or words of similar import in their prescription, is a valid regulation to prevent the circumvention of the law. It secures to the patient the right to choose between the brand name and its generic equivalent since his doctor is allowed to write both the generic and the brand name in his prescription form. If a doctor is allowed to prescribe a brand-name drug with "no substitution," the patient's option to buy a lower-priced, but equally effective, generic equivalent would thereby be curtailed. The law aims to benefit the impoverished (and often sickly) majority of the population in a still developing country like ours, not the affluent and generally healthy minority. (del Rosario vs. Bengzon)
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