JANUARY 11,2013 What justifies taxation?

Basis of taxation Benefit received principle government is delivering basic services therefore we must contribute Mutual benefit principle Reciprocity principle Taxation is generally territorial as a rule the state can exercise the power of taxation over transactions, object, persons, property that are within the jurisdiction of the state, it cannot impose taxes outside the territory of the Philippines Why do we compel the OFW to pay taxes? They are considered resident citizens; they pay taxes because even if they are outside the country they still receive protection from our government through embassies consular offices abroad Theory of taxation lifeblood theory Taxes are the lifeblood of the nation, without taxes the government cannot function. The official get their salaries to discharge their functions

In the past LGUs have the power to tax by virtue of delegation, therefore LGU do not possess the inherent power to tax (BASCO vs PAGCOR LGU cannot impose taxes on nation government instrumentalities because the power to tax by the LGU is not inherent but simply as a result of delegation) This sec 5 does not do away with the principle of local government unit do not possess the inherent power to tax, what it does is that the general power to tax is constitutionally guaranteed and therefore the specific power to tax is still a delegated power to tax (BERNAS) What do we mean by the general power to tax and the specific power to tax? General power to tax - that LGU are deemed to have the power to tax, but what specific subject or object of taxation maybe the subject of taxation that is for the congress to decide Specific power to tax what object or subject of taxation (power of congress to be delegated to the LGU There are 2 levels of taxation: 1. 2. National taxation taxes imposed by the national government Local taxation taxes imposed by LGU

Consequences: 1. you cannot enjoin the collection of tax the collection of tax can never be enjoined by any court (you cannot stop the collection of tax as this would impair the function of the government) Remedy: payment under protest 2. while tax laws are construed strictly against the government because taxation is a derogation of property rights, and every governmental act that is a derogation of property rights then it should be interpreted strictly against the government. However Tax exemptions should be interpreted strictly against the one invoking tax exemption and in favor to the government TAXATION IS THE RULE EXEMPTION IS THE EXCEPTION in case of doubt you are liable to pay A taxpayer must convincingly show that he is exempted from tax in order to prove you are exempted from tax one must be able to point out a specific provision of a law that provides that exemption.

National Internal Revenue Code (national taxes) tax code What are the national taxes? Income taxation whether in the form of compensation from compensation earners (salary employees), income in the form of business, tax paid tax, excise tax (taxes that are imposed either to a person or property) Value added tax Income tax Documentary tax Donor tax Inheritance tax Estate tax Capital gains tax Local taxes are those taxes identifies provided for in the local government code (community tax, real property tax, transfer tax, amusement tax, professional tax, The general power to tax is there but the specific power to tax a (profession) is statutorily guaranteed Is it possible for congress to amend the local government code and abolish the power to imposed transfer tax because you might think it is double taxation? When transfer a real property by virtue of sale you have to pay the following taxes: 1. Capital gains tax you pay capital gains tax if the sale of the real property is not by the reason of the regular business of selling the real property otherwise you pay value added tax. Usually percent in the fair market value

Requirements for Tax Exemption: 1. there is a specific provision of law that provides a tax exemption 2. must be clear and categorical Reason- Lifeblood Theory Who may exercise the power of taxation? All 3 powers of the state are legislative in nature therefore power to tax is the power of congress. The power to tax may be delegated to local bodies (local governments) this is constitutionally guaranteed (eminent domain, and police is not guaranteed constitutionally) sec 5 art X.

or the local evaluation whichever is higher? It will go to the government but you still have to pay transfer tax to the city hall. Double taxation? it is not because it is impose by two different taxing jurisdiction But if congress altogether abolishes the power to tax of the LGU. Its a different story. Basco vs PAGCOR why LGUs power to tax is subject to limitation by congress? One major reason is to guarantee uniformity of taxation, to make sure the exercise of the power of taxation by LGU is uniform. Second to make sure that the power to exercise the power to tax is exercised reasonably and fairly and not discriminatory Thirdly to make sure that the power to tax by LGU would be exercised equitably (equitable taxation) At the end of the day the purpose of that is to make sure that the power to tax in sec 5 by LGU therefore that it has constitutional standard The power to tax is subject to litigation, as in any power it will be subject to limitation What are the inherent limitations to the power to tax? 1. 2. That it must be for public purpose, it is not valid if you collect and spent it for private purpose Territoriality generally taxes are imposed for object of taxation that is found within the territorial jurisdiction of the taxing authority. It is also true in LGU. Taxation must be equitable Non delegation of the power to tax exception LGU, President Sec 28 art VI (the president has the necessary resources to impose taxes on these taxes, DFA) What are constitutional limitations to the power to tax? 1. Sec 24 art VI all appropriation, revenue, tariff bills, bills authorizing increase in public debt, bills of local application and private bills must originate exclusively in the house of rep but the senate may propose or concur with amendments

Tolentino vs Sec. Of finance it may still be replaced/substituted by their own version and it does not violate the constitutional mandate. 2 constitutional limitation On the matter of the taxes imposed for special purpose, taxes imposed for special purpose can only be appropriated and spent for that ?????? [ around 2:47 mins] purpose, it is only when there is an except to the taxes levied for special purpose that these taxes will go to the gen. fund, you learned that in your consti 1. So thats another constitutional limitation. So levied must be for special purpose and be spent appropriately for that special purpose. 3rd constitutional limitation Another constitutional limitation is found in Sec. 28, Art. VI. On the matter of 1.Uniformity of tax, 2. Equitable tax , 3. that Congress shall evolve a progressive system of taxation. EQUITABLE TAXATION -congress passes a law imposing a tax of 5,000 per month for every employee in all private sectors. Is the tax law constitutional or unconstitutional? [ 5 :03] Why? Is that equitable? What do we mean therefore by equitable taxation? How do you accomplish equitable taxation? So how are we addressing the standard of equitable taxation Under our tax law? ANSWER : by imposing PROGRESSIVE SYSTEM OF TAXATION! What do we mean by progressive system of taxation? [7:34] by imposing progressive taxes! When is a tax considered progressive? When the tax rate increases as the tax base also increases. Meaning as your income increases ang imu tax rate also increases. That is a progressive tax. [10:05 mins] PROGRESSIVE SYTEM OF TAXATION What is a progressive sytem if taxation as oppose to progressive taxes? Look at sec. 28, it says congress shall evolve a progressive sytem of taxation. What is the opposite of Progressive System of Taxation? Regressive! Unsa man ang progressive system of taxation? Nya unsa man ang progressive tax? Tax is progressive as what I have [ 11:25], we are talking of the [11:28] but if we talk about progressive system of taxation,we are talking about a system of taxation that opposes?? on direct taxes @ one time it is a requirement of progressive system of taxation. what explained also in Tolentino vs. Sec. of Finance, questioned we shouldnt be imposing VALUE ADDED TAX during that time, at the height of the imposition of the EVAT. We shouldnt be imposing VAT, why? Bec. It is a regressive tax. Unsa may pasabot anang regressive tax?as oppose to progressive we say a system of taxation its progressive if it opposes on direct taxes. Unsa manang direct taxes?a tax is direct if the person who has the liability to pay the tax, actually pays the tax . that is direct taxation. The person who has the burden to pay the tax,actually pays the tax and actually shoulders the burden. Meaning it is not able to pass it on to another person with in the case of [ 13:45 ], REGRESSIVE SYSTEM OF TAXATION direct taxes, example of Direct tax is income. Income tax is a direct tax, if you earn income you pay as a result of the earning of your income you cannot pass it on to any other individual or entity for that matter, ikaw nga liable to pay the tax, you must pay the tax. No problem as for compensation earners bec. We are following withholding tax exempt, wa pud kay choice kay inig bayad sa employer sa imu salary deducted na ang imuhang income tax, way lusot. Kinsay mo.bayad? kinsay ni shoulder sa burden? Ikaw! Kay g.deductan man ka. Example of indirect tax example,[14:57] sales tax, excise tax, the value added tax. Why? Bec. In Vat, sales or indirect tax, the taxpayer who has the burden to pay, may actually
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3. 4.

What is the participation of the senate? Only to concur with amendment, So dli pwede ang senate mag.initiate ug revenue bill. Except that if you remember the case of TOLENtINO vs SEC. OF FINANCE decided in 2008, when the EVAT law was questioned by tolentino as unconstitutional. You remember that case? Dba? Ang evat came from the house of rep., but at the time of nga nag.deliberate ang house of rep. the senate has already their own revision, so pag-abot sa evat ngadto sa senate kay bicameral lge from lower house adto sa senate upper house, pag.abot didto padaplin nila ang house version ang senate version ang g. proceed and then there after didto sa bicameral committee. Tolentino questioned it bec. Its says Sec 24, Art. 10, it must originate exclusively sa lower house the only participation of the senate is to concur wth the amendment but the SC said, well amendment shouldnt be construed, ahhh, respectively bec. Even if they substituted the version it may be considered as what? As amendment by substitution. So amendment ra ghapon,except that it is by substitution. That while there is sec. 24, requiring that a Revenue bills must originate exclusively from the lower house and under the constitution senate can on concurrence of amendment. In

pass it on to another individual or entity so the burden to pay is possible to another. How is it possible? Ex. HEMBERGER. It is the seller who is liable to pay tax, but he can pass it on by adding the tax credit into the price, it is the consumer who actually shoulders the tax. The constitution tells congress can evolve a Progressive System of Taxation, How is it possible that congress is able to impose a VAT w/in an indirect tax, when the constitution mandates[19:15], how did the SC solve that? By logic, the part that the constitution mandates congress to evolve a Progressive system of taxation does not mean that congress also cannot impose regressive taxes, the mandate is only to have progressive, if you add regressive its not a violation, the violation therefore of the constitutional mandate is when you dont progressive, and instead you just evolve regressive, but if you have progressive, you add to your progressive system of taxation, regressive system of taxation. THEN ITS OK. UNIFORMITY in TAXATION Does not mean that all object and subject of taxation shall be taxed at similar rates,d na moy meaning sa uniformity. it will infact violate the equitable system of taxation or equitable taxation[12:57] no similar rate although object of taxation belonging to the same tax. EQUALITY AMONG EQUAL If we Belong to the same category, we belong to the same group, it is legal for the state to impose a similar tax rate different from the other, it should be classified. You are familiar with equal protection clause ryt? Thats a requirement for what they call t he valid distinction. In one case it was questioned Why s it that for compensation earner the tax base is gross income, whereas for professional and public offices the tax base is net? What is the difference? Base is where you impose the tax rate in accounting it is called the taxable income. What is the difference between net and gross? Gross, no deductions, net, with deductions. Compensation earners what are deducted are those personal deductions or dependents[children for example] other than that no deductions. But for professionals, expenses are deducted such as utilities, rental fees, we allow on the deduction on the expenses of the operations. Is it okay to treat differently. YES! Bec. They dont belong to the same class. For income tax payers every bracket is a different class actually. Kadtong mga below pla to nga mga amount, kadtong higher mao ni nga tax lahi nasad nga bracket another tax pay. For business incme of [25:47}corporation??. We distinguish between domestic and foreign corporation, [26:00] rate, but on gross RECEIPT? But on domestic NET. Sakto ba ko? [BLAH,BLAH,BLAH NAG.LIBOG NKU 26 UP. HUHUUHU]

manner that Congress may opt to exempt specific object of taxation. If Congress wishes to invite foreighn investors then it can impose minimal taxes that exempt them e.g., pioneering industry (Export Processing Zone), they may also be given tax incentives. Kinsa man ang mag-decide ana? Congress! Its a political question. If Congress decides not to give what it seems to foreign investors, pwede na but it is not right, what is right is to give them incentives so that we can invite them in, its a political question. 2)Tax rate is generally a political question, why 12%?10%?2%?, its for Congress to decide. Except that we need to discuss a Constitutional limitation but it is also part of the inherent limitation observant of due process because in the matter of the rate of taxation, while it is political, a limitation may be is when it is also confiscatory. When is the tax rate confiscatory? In the Philippines, a tax that is very high especially when it is income, direct tax may be assailed as confiscatory. In Scandinavian State high tax rate but free education, free medical assistance, etc.. The fact that a tax rate when increse to that level of Scandinavian State and then we change our Social System that may be assailed as confiscatory. 3)For implementation in the manner that violates due process may be assailed as confisatory. As a general rule, this are areas that are beyond judicial scrutiny. In sofar as exemptions is concern, however, there is a limitation. The limitation is that when Congress imposes or rather provides tax exemptions, it can only do so upon the vote of the majority of all the members dili majority of the members present constituting the quorom, mao mana ang usual . In tax exemptions it is always majority of the members in total number and it is a Constitutional requirement and it becomes the limitation. Art. VI, Sec. 29(3) SECTION 29. (3) All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the Government. Problem: UC, a stock and profit educational institution, owns a parcel of land and decides to sell it to a neighbor hotel GV, is UC liable to pay capital gains tax? Held: Sec. 28(3) Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. Note: wa nahuman ug solve kay time na.. Distinction between stock and non-stock non-profit educational institution Stock: Non-stock: ownership of entity therefore no stockholders and shareholders. Consequence, no dividend will be declared. Eg., USC has only Board of Trustees not Board of Directors. Profits are used for school developments.

Art. VI, Sec. 28(4) Tax exemptions are limited to those granted by law. However, no law granting any tax exemption shall be passed without the concurrence of a majority of all the members of the Congress. On the same manner that Congress can impose tax, Congress can also decide to exempt the particular subject of taxation. Always remember! Taxation is a prerogative of Congress there are areas in taxation that are generally out of judicial scrutiny, meaning Political question. In the areas of 1)object of taxation, 2) rate of taxation, 3) implementation of tax law. 1)object, ug modefine ang Congress not to impose higher tax on sin taxes, cigarette people... Of course we know that politically dapat mo.impose ug higher tax to promote the general welfare by way of taxation.pwede! In the same

THE CORPORATION CODE OF THE PHILIPPINES [Batas Pambansa Blg. 68]

TITLE XI NON-STOCK CORPORATIONS

Sec. 87. Definition. - For the purposes of this Code, a non-stock corporation is one where

actually, directly, and exclusively used for religious, charitable, trustees, or officers, subject to the provisions of this Code on dissolution: Provided, That profit which a non-stock corporation may obtain as an incident to its or any educational purposes shall be exempt from taxation. operations shall, whenever necessary or proper, be used for the furtherance of the purpose or purposes for which the corporation was organized, subject to the This is important for you to know that because that exception provisions of this Title. states all land building and improvement. Unsa mani sila? Correct, these are property. That constitutional provision states that exempt from taxes does not only mean exempt from property tax take note that you have to ask the question on what is the nature of the taxes imposed is it imposed on a per transaction because if you say it is imposed on a sale, that is JANUARY 14, 2013 irrelevant because Art VI Sec (28) Par (3) has nothing to do with per transaction that is governing the international revenue That subject to a tax code, for purposes of that section you only have to deal with property tax so the question is if that property is taxable and Why are we talking about this because there is aconstitutional what is the requirement in order to effect that taxes bases on limitation to the power of tax, remember the power toexempt object the: from taxationindeed is vested in congress. Congress has the discretion whether to tax an object of taxation for not or to exempt it Two importantconditions for the exemption to be that is a political question. But we have constitutional provisions that applicable already declare that certain properties are exempt from taxes so congresscannot handle that. 1. The taxpayer should be a religious, charitable or an educational institution it is important for you to know that the absent, the scope of the 2. That property used is actually, directly and exclusively application, to that exception. (ADE)for this purpose either religious, charitable and educational purpose First, I think, it is important for you to realize that there are different kinds of taxes and a little later you will know that that exemption We have a very good case of Lung Center of the Philippines applies only to a particular kind of tax. vs. Quezon City this is the landmark case of the matter. it is a non-stock non-profit institution. It has a property of There are 3 kinds of taxes, actually, 3 fundamental kinds of taxes 121,000sq. meter in the middle of that property has is a building, where the Lung Center is situated but not on the 1st 1. Personal tax tax imposed on person regardless of floor but only in the upper floor. Why is this relevant? Because the income although the income may probably use for there are spaces that are leased to the different entities and the purpose of computation. Whether you have income or professionals, doctors. Since it is leased they received rental. not it doesnt matter, you pay personal tax because the These doctors they executed their profession and they also tax is imposed on the person. An example of a demand payment for their professional services (it not for free personaltax that is imposed on a person is your in other words). What about the lung center it offer its services community tax certificate - that is tax imposed on a to the public but its not 100% free there are rooms &bed that person on the basis of being a member of a member of a are not for free and they charge their patients. That is relevant. particular local community. It is not imposed on On one side of the bldg. is a vacant lot but on the other it is hisproperty; it is not imposed on his income it is imposed leased for a store for gardening therefore it received payment on his person. from the lease.So how do we deal with it? 2. Property tax it is the tax imposed on property regardless whether the property is earning income it doesnt matter it is a assessed imposed on a property and the best example of a property tax is real property tax which is tax imposed by LGU assessment will be made and based on the assessment level there will be an assessed value given and there will be a corresponding liability to pay tax. Excise tax- an example of your excise tax is of course your value added tax. What is an excise tax? A tax that is imposed either to a person or a property but if you have to extend it further excise tax is also imposed on transactions, income, occupation, activity, privileges, etc. so you have professional tax on profession occupation, income, sale, transaction, activities, amusement tax these are excise tax. Were talking here of the example of a charitable institution. The first thing that you have to evaluate iswhether or not the entity or tax payer qualifies as a religious, charitable or educational institution. So what did the SC says on how do you determine the nature of the institution on whether it is a religious, charitable or educational institution? In view of the fact that, lungcenter is not 100% for charity as it accepts patients who pay. did it affect the nature of lung center as a charitable institution? Is it required that for an institution to be called as charitable institution that it should not receive payment otherwise the moment it does it will loses its charter for being a charitable institution? The SC says no, thats not how you determine the nature of that institution.So how? First you look at the very nature and the way to do that is for one if you look at the bylaws, constitutionor laws and if it is created by the law then you look at the law to see if it has a charitable purpose. In this case it is establish that it is a nonstock non-profit and is registered in SEC and it has its own article of incorporation and bylaws so you look at the primary and secondary purpose and the SCfound in the articles of incorporation and bylaws that its primary purpose is for charitable work. So the practice of accepting patients for fees will not affect the nature of the charitable institution, per sebecausewerenot

3.

Property Tax Real Property Tax Art VI Sec (28) Par (3) - Charitable institutions, churches and personages or convents appurtenant thereto, mosques, nonprofit cemeteries, and all lands, buildings, and improvements,

talking about the practice of the institution but the institution whether it is religious, charitable and educational.Religious it shouldnt be a problem; educational shouldnt be a problem but charitable maybe since it is possible that there may be a service for a fee and service for free. Lung Centerevokes the earlier case of Herrera and reiterated in Abbra Valley College. Herrera vs Quezon City -The issue is not whether the institution is charitable or not. The Issue here is whether or not the SC considered the property involve is actively, exclusively nd and directly for purpose (2 condition). This was decided in 1961 and is governed by the 1935 constitution wherein it did not mention on directly and exclusively used for the purpose. And in 1973 and 1987 Constitution what it stated is that the land, building and improvement will be actually, directly and exclusively used thus, the SC stated that the petitioner in the Lung Center case cannotevoke this case because Abbra Valley College vs Juan Aquino - There where spaces in the ground floor offered for commercial purposes, remember, itis not relevant at this point is whether the institution is nonstock non-profit, where talking about whether the institution is religious, charitable or an educational institution. The 2nd floor is used by the director for residential purposes. 1935 Constitution - what was found there was the requirement exclusivity and because of the requirement ofexclusivity the threshold was very low and therefore the requirement was not that strictbut a little bit stiffer welcome incidental purposes not affecting the intention of the property involved. Thats why in Abbra Valley case the use of 2nd floor by the director for residential purposes in considered incidental to its primary purpose which is educational since he is the director of the school. 1973 & 1987 Constitution -they added actually and directlynow rating the threshold so applying the stricter threshold, higher threshold. In the case of Lung Center, SC directed the city assessor to determine which part of the building and the land that were actually, directly and exclusively used and which part are not and imposed the tax accordingly. Let me quote a problem: A judge imposed a tax on the land and on a building, either that is the assessment or not, but apparently now it is required that the assessor should make a proportionate computation, probably there are 10 stores and the assessed value is P10million and the taxable real property tax liability is P1million, it appeared that 20% of the building is not used ADE. Is the liability P1million less 20%? Correct, proportionate.

Article 14 Sec 4 (3)- All revenues and assets of non-stock, nonprofit educational institutions used actually, directly, and exclusively for educational purposes shall be exempt from taxes and duties. Upon the dissolution or cessation of the corporate existence of such institutions, their assets shall be disposed of in the manner provided by law. It is know that USC is non-stock non-profit. A question should be asked on What is the purpose of the property/transaction? There is a requirement for a property/transaction to be exempt from taxes and duties (practically all). 1. 2. Non-stock Non-profit educational institution only ADE, That property that will have the tax liability on the basis of the property shall be actually, directly and exclusively used for educational purpose.

What are the computers used for? If distributed for faculty members that is educational.Or laboratory purpose. The Reason for the exemption of religious organization, not only those provided for the constitution but also to maintain the principle of separation of Church and State. You cannot have a legal system where the church and the state will get entangled excessively. For Charitable, is just out ofgenerosity purposes since the acts of a charitable institution are usually state functions such as, education, health, medical, etc. This is also to encourage the foundation, corporation and people to be involved in the charitable. And for educational purpose, is to encourage establishment of educational institution since it is one of the function of the state thus giving them premium.

CONSTITUTIONAL RIGHTS AND PRIVILEGES What is the task of Constitutional Law Student? Balance, Authority on one hand and Liberty on the other. What do you mean by Balance? Does that mean equality? Or it depends upon the authority on what were talking about and it depends by the liberty that is affected by the authority? Art 3 of 1987 Constitution Manila Prince Hotel vs GSIS in this case the SC made a remarkable discussion about self-executing and a non-selfexecuting provision. And Art 3 of the Bill of rights is characterized as a self-executing provision; it can therefore be a source of right immediately without referring to alaw passed by congress. You do not have to pin point a law that implements the constitutional provision. Problem: X was arrested by police officer when he was caught in flagrante delicto for killing his neighbor. He surrendered and did not refuse the arrest. But while in jail and before he could hire a lawyer. He was interviewed by DYRF, Ella Beverly Capwersa. X while detained in prison welcomed the interview and so Ella ask a lot of questions that if X would admit the killing of his neighbor, said yes admitting the killing. Two hours after Atty. Mona arrived, during the trial the prosecution

Non-stock, Non-Profit Educational Institution Problem: The USC is non-stock non-profit educational institution. It exported 50 laptops from Taiwan. Whats the tax angle? Is the USC liable to pay import duties? This is not under Art VI Sec 28 (3) of Real Property Tax. Notice that in the case of Real Property tax we only deal with the following - religious, charitable and educational institution which are actually and directly used. In the case of educational institution, it is relevant here whether it is non-stock non-profit because educational institution maybe non-stock or stock.In this case Article 14 Sec 4 (3) will govern. Cannot be applied on religious or charitable institution.

presented in court the recorded interview between Ella and X. apparently the prosecution was able to get a copy at NTC as evidence of admission of guilt, motive, etc. Thus, Atty. Mona, stood up and objected for the contention that the admission was taken without a valid search warrant. That admission was taken without the presence of counsel and that admission, and any admission or contention made by the accused cannot be admitted as evidence if there is no counsel. The Prosecution, also stood up, stating that that objection is indeed loud, but the substance is not. Why? What is the basis of the Prosecutions contention? People vs Domasiana child was abducted by the said respondents. The child was release by the help of the witnesses, tricycle driver and barangay tanod. The respondents were convicted of kidnapping and illegal detention. One of the constitutional objections was that Domasian was arrested without warrant and one of the pieces of evidence summited by the prosecution was the note asking for ransom written by Dr. Tan(other responded/co-accused) and given to Dr. Abra (the father of the victim). It was question that having the note taken from the accused without search warrant because as a rule; nothing should come out of your body or house without a valid warrant. If the Constitution or the state wants evidence, it will be the use of a search warrant. But here outset on the Bill of Rights, you should know when to evoke the provision of Bill of Rights.

No person shall be denied of life, liberty, or property without due process of the law. The other one is no person shall be denied the equal protection of the law. That section 1 apparently, of course refers to the power of the state. In a lot of case, when the state exercises its police power, it will affect our right to life, liberty, or property. That is why, we go back to the tests of validity of proper exercise of Police Power, if we are to discuss the Substantive aspect of Due Process. Balik ka sa Lawful Subject, Lawful means. In general, the substantive Due Process requires that the law must be Just, Fair, and Reasonable. Vague mana sir? Dili oi. The court is precisely given the judicial discretion. And what will the court do if they find out that a law is Unjust, Unfair, and Unreasonable? What will the SC use as standard? The court will use just the standard of the community. So that requirement on justness, fairness, or reasonableness is for the court to decide. Naa man silay discretion. Normally, the court will resort to Logic, common sense, community standards, etc. Take for example, a law is passed to implement castration for the crime of rape. Valid or not valid? Even common sense will tell you that such penalty is Unnecessary, Uncommensurate, Uncivilized for the offense? Will it deter from committing the crime? Probably, most likely. But that is not. Diba Lawful Subject, Lawful Means? You still have to do it in order to determine compliance with the Substantive Due Process. So we go back to the case with White Light Case, Overbreadth Doctrine in rel. with Lawful Subject, Lawful Means.

As for the Procedural Due Process, there are 4: In the case of Serrano vs. NLRC. Kana bang due process of law, ayaw gud mo paggamit ana violation of due process, if you are in a what? in a private environment. How do you dismiss an employee? Before Serrano, ang supreme court decisions niingon jud.. due process ra jud sir. Okay? Nasuko c Mendoza, ingun cya dili kuno ta mu.invoke ug term nga due process. Diin man dawn a gikan ang due process. Section 1, Art 3? And hain man nimo giinvoke ang right to due process? Employer? Private institution! Unsay giingun sa SC. Invoke it only against the state, and its agents. Ngano man? Whats the objective of having the bill of rights? Its not to limit the powers of your mother, father, employer,or of Dr. Agra (in Domasi an Case). Its there to limit the powers of the state. So you have for a search warrant, you have for a warrant of arrest, if these are Police officers, or any agent of the state. So ayaw pangayo ug search warrant sa Security Guard kay private party na sya We have our right of privacy against the state, yes we can invoke that. So if nay mangukay sa imong bag unya nakakita ug condom, then mu.invoke ka ug right of privacy from the constitution, you are invoking the wrong provision of the law( because right to privacy can be invoked against the state). Instead, you can use the Civil Code, then you can file for damages. Otherwise, if it is a crime, like unjust vexation, you can use the RPC. So balik ta sa Serrano case, unsa may giingun ni Mendoza? FAIR PLAY. Mao ra ghapon, in the interest of Fair Play rather than Due Process, which requires 2 lenient memorandum: 1.show cause memo 2. Memo for termination. 1. Impartial and Competent Court a. Impartial- not biased. a. The judge must be impartial, in his relationship with them, there is no possibility of becoming impartial because he has no RELATIONSHIP with the litigants. The following are grounds for disqualification of a judge under ROC: 1. When the judge is related to one of the parties up to 4th civil degree of consanguity or affinity or even of the spouse of the litigant. 2. the Judge has financial interest

b. Judge should be impartial in his Demeanor/Actuation. If a judge appears to give more favor to a party than the other, that can be a ground for disqualification. Thats why you see motion for inhibition after incidents in courts. Not only that he must he act it out that he is fair, he must also appear impartial . In one case, a judge was the one who decided it in the RTC. When he was promoted to CA, he again handled that case. Can you expect an objective resolution on the appeal when the same judge is the one handling it on the appeleate court? b. Competent Court- this does not mean that the judge is well-trained. It refers to a court that has jurisdiction over the case. In remedial law, jurisdiction can be over the: Person, Case, Subject Matter. Jurisdiction means authority. So sir, how do we know that the court has jurisdiction over the case? Congress defines jurisdiction. So only if that court is vested with that authority can be a court called a competent court. So sir, if sayop ang judge sa jurisdiction, then the decision will be VOID. 2. Jurisdiction over the Person or the ThingDepende mana class naa may case class na gitwag natong In rem, where walay parties but just on a particular subject. Like kung magpatitulo ka ug land, wala man kay kontra. Gawas kng nay mukontra. So the jurisdiction here

Lets talk about due process of law: I think you have learned that due process of law has been defined in different ways. What was the definition of Cooley, Daniel Webster and other authors. At any given day, these are the requirements of due process: 1.Substantive 2. Procedural Due Process Due Process

required is Jurisdiction over the Thing. Land Titling. And then another is Jurisdiction over the person. So how does the court acquire it. It depends if it is Criminal or Civil. If Criminal, the court acquires juris over the person of the accused in to wit: 1. Upon lawful arrest- can be done with or without a warrant. Basta lng it is lawful, with or without a warrant 2. If the accused himself appears in court voluntarily. So the lawyer In Civil, court will acquire jurisdiction upon proper service of summons. It can be done personally, by subsecutive service(kanang ibilin lng sa imong wife if the husband is defendant), publication, extrajudicial. That is why, big deal kaayo na how it is served kay it is part of due process. Opportunity(focus on opportunity) to be heard- take note, it is not Hearing that is required. For example, an accused was already notified for a particular hearing, and he absented himself on that particular hearing without justifiable reason, he cannot claim later on that he was not heard because he was already given opportunity to be heard. So sir, is it possible diay that a decision can be served without hearing the accused? Yes, that is possible if the accused opted not to be heard. And that is possible in a case of trial In-absencia in Criminal Cases: 3 reqs: (1) the accused was duly notified of hearing (2) there must be an arraignment stage done (3) absence of the accused Is unjustiable In administrative proceedings, it is more liberal when it comes with the requirements of Opportunity to be heard. You can be heard in a lot of ways. Its not always the requirement that you go personally to court, appear in court and testify, so you can be heard by the judge. What are the other ways? 1. Submission of Pleadings- it is a form of hearing the accused. Ah pwede d.i na sir? After for example ha, wa kay testimony, muingun ang judge: tingbon ko ni ang issue. Unya later on, d nako mutestify no more, muingun ang judge nga you just submit a position paper, legal memorandum or memoranda. So a litigant can be heard a number of ways, dili necessary na mu.appear jud cya did2 in order to comply with the req of opportunity to be heard. take note of that. Ah inig administrative law man gani, which you will discuss later on, bisag wa ka kaapil sa administrative proceedings, then makareceive raka ug decision, but you still have the time to file a motion for reconsideration(wa ka katubag ha), not all of course, but some rules are liberal. Gikuha ka administratively, gov employee ka, wa ka kareceive sa complaint, naginvestigation na cla did2, wa ka kaparticipate, ang next na nimong nareceive kay decision na, suspended naka, and then you still have 15 days to file the Motion for Reconsideration, then wala ka ni.file sa motion for reconsideration, you cannot complain nga wa kay opportunity to be heard, because within the 15 days, you had already the opportunity to be heard. If mufile ka ug MFR, mao nana ang imong answer to the decision. Diba nay complaint gifile unya wa ka kahibaw, which

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means wa ka ka file ug answer, wa ka naheard. Di ka kaingun gihapon. Because when you receive the decision, and you can file a motion to recon, and then you explain to the arbiter nga your honor, wa ko kafile ug answer tungod ani, inana, edi naheard ka dba when the judgment is not yet final? Okay, that is opportunity to be heard even in the admin proceedings. And take note in ANG TIBAY vs CIR, where it mentioned the req for Admin Due process. You also have to relate it in Guzman vs Nat. University, on the academic due process requirements. These 2 might come out in the exam next week. The SC listed out different reqs on Due Process. Judgment- did not discuss

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If you talk about life, liberty or property, it is part due process as I mentioned earlier. When you talk about life, its not just about your existence, it talks about your right to a good life, integrity of your human body. Of course there is a literal interpretation of deprivation of life, like the death penalty. Kana, deprivation of life jud na. But it can also be a deprivation of good life.

Liberty, you are not required to be confined in a place like this or like that to show that you are deprived of liberty. It is not required that you should be detained in order to claim violation of your right to liberty. It is enough that there is a form of restriction of your movements, of your act. As when you are prevented of you are doing an act. So kung nay muingun you cannot go there, you cant do this, that is already a violation of right to liberty. So kani sila imong tanawn when it comes to due process.

Property of course is, it is something of course that is capable of appropriation by man. Who may avail the right of due process? Ingun man nga no person diba? So Natural Persons can avail the right to Life, Liberty and Property. But Corporations cant have the life that we have because they only exist because of contemplation of law. So congress has control of life over the corps, unlike our life which is given by God. The Corp cant also move so liberty cant be availed. So observance of right to property of juridical persons should also be included. Natural Person can be Citizen or Alien. Aliens are also entitle to the right, in fact it is also a customary International Law Obligation to protect the right of an Alien. The moment you accept an alien in your territory, the state has the corresponding duty to accord that alien the right to Life, Liberty and Property. D ka kaingun wa wa cyay right kay alien cya. However, there are rights that foreigners can be denied. An example of which are the Political Rights. You know, rights can be Civil or Political. Other rights may be considered as economic or social. But basically these are the two classification. Political rights are those rights that enable a person to participate in governance. The foreigner is denied on this one. Freedom of expression, right to have access to information pertaining to matters of public concern are denied from them. Exception is that when the alien is a party to the case. (atleast authorized by any of the party?)

Also read, Tanada vs. Tuvera. Why is this part of due process? Publication of the Law? Unsa ni na law sir? The law that deprives us of life, liberty or property. Remember the corollary principle Ignorance of the Law excuses no one from compliance therewith? So you cannot excuse yourself from complying the law just because you did not know what is the law. So how do you put teeth to that? You publish the law because upon publication, everyone is constructively or actually notified of the existence of the law. So that principle will be applicable. However, if the law is merely interpretative or does not affect the public, publication is not required. So anything that affects the public should be published.