Atty. Manuel J. Laserna Jr.: November 2020

Tuesday, November 17, 2020

Note that the police cannot search a vehicle and the occupants thereof on the sole basis of an anonymous tip or a verbal statement by an informant. The tip, text, or verbal statement must first be verified by the policemen through his/her own personal knowledge (not hearsay) prior to the search that there is probable cause to believe that (1) a crime had been committed, and (2) the evidence of the crime, like the prohibited drugs, are in the vehicle to be searched. To repeat, a tip, standing alone, is not sufficient to constitute probable cause.

See - https://opinion.inquirer.net/133740/searches-at-police-checkpoints?fbclid=IwAR37kEoRdNRG84pF2iNrlWW-UPFc-DYL6pYFSPcrP-cVonx_kow_rCm5WZA#ixzz6YX3QD3Gt

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Searches at police checkpoints

By: Artemio V. Panganiban - @inquirerdotnet
Philippine Daily Inquirer / 05:20 AM September 20, 2020

How should police and military officers conduct, and how should the people regard, the checkpoints that are set up (especially during the current pandemic) to safeguard the security, safety, and health of citizens?

The Supreme Court in People v. Sapla (Aug. 19, 2020, ably penned by Justice Alfredo Benjamin S. Caguioa)—featured in this space last Sunday—taught us valuable answers. To be understood by lay persons, let me try to summarize them, together with those found in other decisions, thus:

To begin with, the Constitution deems “inviolable” the right of the people against UNREASONABLE searches and/or seizures. On the other hand, a search and/or seizure cease to be unreasonable and become reasonable, as a rule, when ordered by a judge through a written search warrant.

In turn, a judge may issue a search warrant only after (1) the judge determines the existence of PROBABLE CAUSE (2) via the judge’s PERSONAL examination (3) of the complainant and other witnesses presented under oath or affirmation before the judge, (4) with the place to be searched and (5) persons or things to be seized (6) particularly described in the search warrant. To be valid, the search warrant must satisfy all these six elements. A judge who does not follow them may be sued in, and administratively sanctioned, by the Court.

Probable cause is not determined by a fixed formula. In general, it exists when there are “facts and circumstances which could lead a reasonably discreet and prudent person to believe (1) that an offense had been committed and (2) that the items, articles or objects sought in connection with the said offense are in the place to be searched.”

Seven exceptions to this general rule have been allowed by jurisprudence over the years. Thus, a search warrant is not required when the search (1) is incidental to a lawful arrest; (2) involves an article to be seized in the “plain view” of the police officer; (3) is to be conducted in a vehicle; (4) is consented to by the accused; (5) is done by the customs authorities in ports of entry or exit; (6) is characterized as a “stop and frisk” operation; or (7) is a part of “exigent and emergency circumstances.”

Today, let us focus on the third exception. Normally and routinely, the search of a vehicle (boat, car, bus, truck, or tricycle) is done through “visual inspections” only. Here, police officers may (1) draw aside the curtain of a vacant vehicle stopped or parked in a public place; (2) look at or around the vehicle without touching it; (3) use a flashlight without opening any vehicle door; but (4) should not subject the vehicle’s occupants, if any, to physical or body search.

To subject a vehicle to “extensive and intrusive search” beyond the normal and routine visual inspection, the policemen (like judges) must have PROBABLE CAUSE to believe PRIOR TO THE SEARCH that (1) a crime had been committed and (2) the article or object (usually prohibited drugs) pertaining to the crime that had just been committed can be found in the vehicle to be searched.

Note that the police cannot search a vehicle and the occupants thereof on the sole basis of an anonymous tip or a verbal statement by an informant. The tip, text, or verbal statement must first be verified by the policemen through his/her own personal knowledge (not hearsay) prior to the search that there is probable cause to believe that (1) a crime had been committed, and (2) the evidence of the crime, like the prohibited drugs, are in the vehicle to be searched. To repeat, a tip, standing alone, is not sufficient to constitute probable cause.

In short, to avoid being victimized by unscrupulous law officers at checkpoints, citizens may bring a hard copy of this and last Sunday’s columns to guide them (and the law-abiding policemen); they should assert their rights firmly but peacefully (not forcefully). Otherwise, they may be deemed to have waived them and to have consented to the search; and, if they do so, courts will not be able to help them per exception number 4 above.

Without search warrants issued by judges, police and military officers are allowed by law to conduct only visual inspections at checkpoints. Should they conduct an “extensive search” by searching for or seizing articles or persons without first determining probable cause, they can be held criminally, civilly, and administratively liable now or in the future.

Comments to chiefjusticepanganiban@hotmail.com

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Republic Act No. 110557, otherwise known as the Personal Property Security Act (PPSA).

See - https://mb.com.ph/2020/09/16/chattel-mortgages-pledges-now-obsolete/

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Chattel mortgages, pledges now obsolete

Published September 16, 2020, 10:00 PM
by Atty. Jun De Zuñiga

Credit transactions secured by personal or movable properties used to be documented either through chattel mortgage or pledge instruments and these are the security documents with which the lending industry has been very familiar with, until the enactment on August 17, 2018 of Republic Act No. 110557, otherwise known as the Personal Property Security Act (PPSA).

This law was passed to boost access to credit, especially by micro, small and medium enterprises and by farmers and fisherfolk. It was conceived to strengthen the secured transaction legal framework and provided for the creation, perfection, determination of priority and enforcement of security interests in personal property. It also seeks to have a unified and centralized national collateral registry that will be lodged in the Land Registration Authority (LRA)j to reduce the risks involved in accepting movable collaterals.

The rules on formalities on these transactions have been simplified and harmonized in the new law, eliminating distinctions between a pledge and a mortgage, such as the ability of the mortgagee in a chattel mortgage to recover any deficiency from the debtor if the collateral does not fully satisfy the debt; a remedy which is not allowed in a pledge since the foreclosure of the pledge completely extinguishes the debt.

What is notable is that R.A. 10157 covers all transactions in any form that secure an obligation with movable collateral, except interests in aircrafts and in ships which are governed by other special laws. With its superimposing coverage, this law then declares as repealed the Chattel Mortgage Law and the Civil Code provisions on pledge. As a consequence of the repeal, the chattel mortgage and pledge laws are deemed effectively abrogated from the statute books, meaning, that contracting parties would no longer have any legal basis to document their security transactions within the ambit of a pledge or chattel mortgage; otherwise, there will be an incongruous situation in which the repealed laws will still continue to remain in force.

Questions have been raised however on the effectivity and implementation of said law since the electronic registry contemplated in said law has not yet been established as of this writing. Related thereto, Section 67 of said law provides that “this Act shall take effect fifteen (15) days after publication in at least two (2) newspapers of general circulation. The subsequent section, Section 68, states as follows: “Notwithstanding the entry into force of this Act under Section 67, the implementation of the Act shall be conditioned upon the Registry being established and operational under Section 26. Similarly, the implementing Rules and Regulations of said law provides in Section 10.03 thereof as follows: “Notwithstanding the entry into force of these Rules under Section 10.02, the implementation of the Act shall be conditioned upon the Registry being established and operational made Rule IV.”

The next question, therefore, is whether credit transactions may still utilize chattel mortgage and pledge instruments in the meantime that the electronic registry has not yet been set up in the LRA. The issue remains unsettled at this point and the answer can be argued from both sides. As may be noted, the law and its implementing regulations say that implementation shall be conditioned on the setting up of the electronic registry. On the other hand, it can be argued that implementation is different from effectivity and that what is suspended is the implementation but not the effectivity of the law. The LRA, as the principal implementing agency, may thus see it fit to provide clarification on the matter.

The above comments are the personal views of the writer. His email address is dezunigajuan@gmail.com

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Southeast Asia's evolving security dynamics

National security risks of pro-China and anti-Filipino economic policy

[Oringally posted on Facebook on October 30, 2020]

Duterte's House of Representatives and his Cabinet illegally attempt to ignore, reject and dishonor the 1987 Constitution in their despicable desire to accommodate Chinese investors, despite the serious national security risks that such a pro-China and anti-Filipino policy engenders.

A few months ago, the House adopted an unconstitutional bill on public utilities that contradicted the pro-Filipino provisions of the Constitution.

This week, according to news reports, Duterte's Department of Energy opened the geothermal industry to corporations with one hundred percent (100%) foreign ownership, notwithstanding the provisions of the Constitution to the contrary.

By way of review, it should be noted that Section 2, Article XII (National Economy and Patrimony), of the 1987 Constitution, inter alia, provides, as follows:

1. All LANDS OF THE PUBLIC DOMAIN, WATERS, MINERALS, coal, PETROLEUM, AND OTHER MINERAL OILS, ALL FORCES OF POTENTIAL ENERGY, FISHERIES, FORESTS OR TIMBER, WILDLIFE, FLORA AND FAUNA, AND OTHER NATURAL RESOURCES ARE OWNED BY THE STATE.

2. With the exception of AGRICULTURAL LANDS, ALL OTHER NATURAL RESOURCES SHALL NOT BE ALIENATED.

3. The EXPLORATION, DEVELOPMENT, AND UTILIZATION OF NATURAL RESOURCES shall be under the FULL CONTROL AND SUPERVISION OF THE STATE.

4. The State may directly undertake such activities, or it may enter into CO-PRODUCTION, JOINT VENTURE, OR PRODUCTION-SHARING AGREEMENTS with FILIPINO CITIZENS, OR CORPORATIONS OR ASSOCIATIONS AT LEAST 60 PER CENTRUM OF WHOSE CAPITAL IS OWNED BY SUCH CITIZENS.

5. Such agreements may be for a period not exceeding TWENTY-FIVE YEARS, RENEWABLE FOR NOT MORE THAN TWENTY-FIVE YEARS, and under such terms and conditions AS MAY PROVIDED BY LAW.

6. In cases of WATER RIGHTS FOR IRRIGATION, WATER SUPPLY, FISHERIES, OR INDUSTRIAL USES other than the development of waterpower, BENEFICIAL USE may be the measure and limit of the grant.

7. The State shall PROTECT the nations MARINE WEALTH in its ARCHIPELAGIC WATERS, TERRITORIAL SEA, AND EXCLUSIVE ECONOMIC ZONE, and RESERVE its use and enjoyment EXCLUSIVELY TO FILIPINO CITIZENS.

8. The Congress may, by law, allow SMALL-SCALE UTILIZATION OF NATURAL RESOURCES BY FILIPINO CITIZENS, as well as cooperative fish farming, with PRIORITY TO SUBSISTENCE FISHERMEN AND FISH WORKERS in rivers, lakes, bays, and lagoons.

9. The President may enter into AGREEMENTS WITH FOREIGN-OWNED CORPORATIONS involving either TECHNICAL OR FINANCIAL ASSISTANCE FOR LARGE-SCALE EXPLORATION, DEVELOPMENT, AND UTILIZATION OF MINERALS, PETROLEUM, AND OTHER MINERAL OILS according to the general terms and conditions PROVIDED BY LAW, based on REAL CONTRIBUTIONS TO THE ECONOMIC GROWTH AND GENERAL WELFARE OF THE COUNTRY.

10. In such agreements, the State shall promote the development and use of LOCAL SCIENTIFIC AND TECHNICAL RESOURCES.

11. The President shall SHALL NOTIFY CONGRESS OF EVERY CONTRACT entered into in accordance with this provision, WITHIN THIRTY DAYS FROM ITS EXECUTION.

We all know that the Constitution provides that only Filipino citizens or Filipino corporations (sixty percent Filipino ownership) may own lands in the Philippines.

The exceptions are land ownership via heriditary succession (inheritance) and land ownership by former natural-born Filipinos who have lost their Filipino citizenship because they have been naturalized citizens abroad (subject to the limitations and conditions fixed by law).

Further, it should be noted that Section 3 of the same Article XII, inter alia, provides, as follows:

1. ALIENABLE lands of the public domain shall be limited to AGRICULTURAL LANDS.

2. PRIVATE CORPORATIONS OR ASSOCIATIONS may NOT HOLD such alienable lands of the public domain EXCEPT BY LEASE, for a period not exceeding TWENTY-FIVE YEARS, RENEWABLE FOR NOT MORE THAN TWENTY-FIVE YEARS, and not to exceed ONE THOUSAND HECTARES in area.

3. CITIZENS of the Philippines may LEASE not more than FIVE HUNDRED HECTARES, or ACQUIRE not more than TWELVE HECTARES thereof, by PURCHASE, HOMESTEAD, OR GRANT.

4. Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform, the CONGRESS shall DETERMINE, BY LAW, the SIZE OF LAND OF THE PUBLIC DOMAIN which may be ACQUIRED, DEVELOPED, HELD, OR LEASED and the CONDITIONS THEREFOR.

In closing, the sworn constitutional duty of the heads and members of the three independent branches of the government (Executive, Legislative and Judiciary) is to honor, uphold and enforce the letter and spirit of the Constitution and the laws implementing its provisions.

The Constitution represents the soul and the very identity of the nation.

The Executive who violates the Constitution must be impeached.

He and his co-conspirators in his Cabinet must be criminally prosecuted and punished by the sovereign Filipino people.

The members of the Judiciary (Supreme Court), which is supposed to be the last institutional bulwark of the rule of law in the country, who violate the Constitution by promulgating grossly unjust, illegal and unconstitutional doctrines, pronoucmenets, decisions and resolutions must likewise be impeached and criminally prosecuted and punished by the sovereign Filipino people.

The members of the pork barrel-fed and dynasties-infested Legislative (aka the congress of crocodiles) who violate the Constitution by adopting clearly unjust, corrupt and unconstitutional laws and resolutions must be condemned and rejected in the elections and criminally prosecuted and punished by the sovereign Filipino people.