Bill of Rights Reviewer

BILL OF RIGHTS Section 1:

No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.

WHAT IS THE SIGNIFICANCE OF BILL OF RIGHTS? The significance of Bill of Rights is a guarantee that there are certain areas of a person‟s life, liberty and property which governmental powers may not touch. Fundamental powers of the State (police power, eminent domain, taxation) 1. POLICE POWER is the most essential, insistent and the least limitable of powers, extending as it does to all the great public needs. It is the power vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subject of the same. SCOPE:

Police power rests upon public necessity and upon the right of the state and of the public to self-protection.

2. POWER OF EMINENT DOMAIN is the ultimate right of the sovereign power to appropriate, not only the public but private property of all citizens within the territorial sovereignty to public purpose. 3. POWER OF TAXATION is the power to raise revenue for governmental purposes. TO WHAT AREAS OF LIEE POLICE POWER HAS PERVASIVE REACH? Police power has been used to justify enactments in the fields of: 1) 2)

3)

4)

Public health measures like make house repairs; compulsory connection to sewerage system; license to practice medicine; regulation of cattle imports; sale of meat. Public safety measures like building regulations; regulation of carrying deadly weapons; participation in rotational patrol duty; regulation of gasoline stations and movie theaters; use of city roads. Public moral like regulating the operation of public dance halls; prohibiting gambling; licensing of cock-pits; prohibiting the operation of pinball machines; regulating the operation of motels and hotel; regulating establishment of massage parlors. General (public) welfare like regulating slaughter of carabaos; provisions for the suppression of agricultural pests; regulating nuisances; rules for the deportation of aliens; regulating building construction; prescribing registration of land under the Torrens System; zoning regulations; antigraft laws designed to curb activities of public officials

Requisites for valid exercise of Inherent Powers: The yardsticks for the exercise of the inherent powers of the government are: 1. Due Process Clause 2. Equal Protection Clause GIVE THE TWO ASPECTS OF DUE PROCESS AND DISCUSS EACH. The two aspects of due process are: 1) Substantive due process simply means that the law be reasonable and not arbitrary. 2) Procedural due process meant a law that hears before it condemns; that proceeds upon inquiry, and renders judgment only after trial.

DO LIFE AND PROPERTY ENJOY IDENTICAL PROTECTION FROM THE CONSTITUTION? NO. The primacy of human rights over property rights is recognized. Property rights can be lost through prescription while human rights is imprescriptible. DOES EQUAL PROTECTION OF LAW PROHIBIT CLASSIFICATION? NO, but the classification must be reasonable. To be reasonable, it; KEY: RGLA 1) Must rest on substantial distinction; 2) Must be germane to the purpose of law; 3) Must not be limited to existing conditions only; 4) Must apply equally to all members of the same class. GIVE THE MEANING/RELATIVITY OF DUE PROCESS ACCORDING TO THE CASE OF US v. LING SU FAN In the case of U.S. v. Ling Su Fan due process simply means: 1) That there shall be a law prescribed in harmony with the general powers of the legislative department of the Government; 2) That this law shall be reasonable in its operation; 3) That it shall be enforced according to the regular methods of procedure prescribed; and 4) It shall be applicable alike to all citizens of a state or to all of a class. GIVE THE ESSENTIALS OF PROCEDURAL DUE PROCESS IN JUDICIAL PROCEEDINGS ACCORDING TO THE CASE OF BANCO ESPANOL v. PALANCA In the case of Banco Espanol Filipino v. Palanca, the essentials of procedural due process in JUDICIAL PROCEEDINGS are: 1) There must be a court or tribunal clothed with judicial power to hear and determine the matter before it; 2) Jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceedings; 3) The defendant must be given opportunity to be heard; and 4) Judgment must be rendered upon lawful hearing. GIVE THE CARDINAL PRIMARY REQUIREMENTS OF DUE PROCESS IN ADMINISTRATIVE PROCEEDINGS In the case of Ang Tibay v. Court of Industrial Relations, the “Cardinal primary requirements in ADMINISTRATIVE PROCEEDINGS were summarized as follows: 1) The right to a hearing, which includes the right to present one‟s case and submit evidence thereof; 2) The tribunal must consider the evidence presented; 3) The decision must have something to support itself; 4) The evidence must be substantial (such reasonable evidence as a reasonable mind might accept as adequate to support a conclusion). 5) The decision must be based on evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; 6) The tribunal or body or any of its judges must act on its independent consideration of the law and facts of the controversy, and not simpy accept the views of a subordinate; and 7) The Board or body should, in all controversial questions, render its decision in such manner that the parties to the proceeding can know the various issues involved, and the reason for the decision rendered.

2

GIVE THE MINIMUM STANDARS WHICH MUST BE MET BY THE SCHOOLS TO SATISFY THE DEMANDS OF PROCEDURAL DUE PROCESS In Guzman v. National University, the Supreme Court provided the guidelines for the handling of disciplinary cases in schools: 1) The students must be informed in writing of the nature and cause of an accusation against them; 2) They shall have the right to answer the charges against them, with the assistance of counsel, if desired; 3) They shall be informed of the evidence against them; 4) They shall have the right to adduce evidence in their own behalf; and 5) The evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case. Constitutional and statutory due process “No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws” (Section 1, Art. III). Statutory due process: “Laws shall take effect after fifteen (15) days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation, unless it is otherwise provided” (Art. 2 Civil Code of the Philippines). EXPLAIN VOID FOR VAGUENESS DOCTRINE In People v. Nazario 186, 195-196 (1088) the Supreme Court said: “As a rule, a statute or act may be said to be vague when it lacks comprehensible standards that men “of common intelligence must necessarily guess at its meaning and differ in its application.” It is repugnant to the Constitution in two aspects: 1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and 2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. Concept of Equal protection In Tolentino v. Board of Accountancy), the Supreme Court said: “The guarantee of equal protection means that no person or class of persons shall be deprived of the same protection of the laws which is enjoyed by other persons or other classes in the same place and in like circumstances.” Standards of judicial review on equal protection: 1) Rational Basis Test “A law that touches on a constitutionally protected interest must be rationally related to furthering a legitimate government interest. In applying the rational basis test, courts begin with a strong presumption that the law or policy under review is valid. 2) Strict scrutiny test To pass strict scrutiny, the law or policy must satisfy three (3) tests: 1) It must be justified by a compelling governmental interest; 2) The law or policy must be narrowly tailored to achieve the goal or interest; and 3) The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest.

3

Search and seizures Section 2. Art. III. “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the Judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.” Concept: It protects the privacy and sanctity of the person himself. It is a guarantee of the right of the people to be secure in their persons against unreasonable search and seizures. It is a guarantee against unlawful arrest and other forms of restraint on the physical liberty of the person. Warrant Requirement Requisites of a valid warrant: 1) It must be issued upon “probable cause”; 2) probable cause must be determined personally by a judge; 3) such judge must examine under oath or affirmation the complainant and the witnesses he may produce; 4) the warrant must particularly describe the place to be searched and person to be seized. Probable cause meant such reasons, supported by facts and circumstances, as will warrant a cautious man in the belief that his action and the means taken in prosecuting it, are legally just and proper. Probable cause for an arrest or for the issuance of a warrant of arrest mean such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. Probable cause for a search meant such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. “Personally examine the complainant and his witnesses” meant the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause Particularity of description meant “description that expresses a conclusion of fact – not – law by which the warrant officer may be guided in making the search and seizure, or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued” “John Doe” satisfies the requirement of particularity of description provided it contains a descriptio personae such as will enable the officer to identify the accused” Warrantless searches IS EVERY WARRANTLESS SEARCH AN ILLEGAL SEARCH? NO. Not every warrantless search is illegal search. As a general rule searches and seizures must be accompanied with a valid warrant except: 1) When the right is voluntarily waived; 2) When there is valid reason to “stop and frisk”; 3) When the search is incidental to a lawful arrest; 4) Search of vessels and aircraft; 5) Search of moving vehicle; 4

6) Inspection of buildings and other premises for the enforcement of sanitary and building regulations; 7) When prohibited articles are in plain view; 8) Search and seizure under exigent and emergency; 9) “Areal target zoning” or “saturation drive” (valid exercise of military powers of the President; 10) Searches of passengers at airport. R.A. 6235 provides that every airline ticket shall contain a condition that hand-carried luggage, etc., shall be subject to search and this condition shall form part of the contract between the passenger and the air carrier. DO THE ORDINARY RIGHTS AGAINST UNREASONABLE SEARCHES AND SEIZURES APPLY TO SEARCHES CONDUCTED AT THE AIRPORT PURSUANT TO ROUTINE AIRPORT SECURITY PROCEDURES? NO. Searches of passengers at airport. R.A. 6235 provides that every airline ticket shall contain a condition that hand-carried luggage, etc., shall be subject to search and this condition shall form part of the contract between the passenger and the air carrier. Warrantless arrest A peace officer or private person may, without a warrant, arrest a person: 1) When, in his presence the person to be arrested has committed, is actually committing, or attempting to commit an offense‟; 2) When an offense has in fact been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and 3) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving a final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. Privacy of communication and correspondence Section 3 Article III. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”

What is the writ of habeas data? It is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. Who may file a petition for the issuance of a writ of habeas data? The petition may be filed by the aggrieved party. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by: 1) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; 2) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph.

5

Where can the petition be filed? 1) Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner; 2) Supreme Court; 3) Court of Appeals; or 4) Sandiganbayan, when the action concerns public data files of government offices. Freedom of expression “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances” (Section 4, Article III). EXPLAIN PRIOR RESTRAINT AND SUBSEQUENT PUNISHMENT PRIOR RESTRAINT means governmental restrictions on the press or other forms of expression in advance of actual publication like licensing, judicial restraint in the form of injunction or taxes measured by gross receipts for the privilege or flat license fee for the privilege of selling religious books. SUBSEQUENT PUNISHMENT is an assurance so that an individual may not hesitate to speak for fear that he might be held to account for his speech or that he may suffer the retaliation of the officials he may have criticized or cited. Tests: EXPLAIN DANGEROUS TENDENCY RULE, CLEAR AND PRESENT DANGER, AND THE BALANCING OF INTEREST TEST Dangerous Tendency Rule – For speech to be punishable, there should be a rational connection between the speech and the evil apprehended. Simply put, the determination by the question: Is the statute reasonable? Clear and Present Danger Rule: “The question in every case is whether the words used in such circumstances are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. Balancing of Interest test – “If on balance it appears that the public interest served by restrictive legislation is of such a character that it outweighs the abridgment of freedom, then the Court will find the legislation valid” Facial Challenge and the over breadth doctrine The rule prohibits one from challenging the constitutionality of the statute based solely on the violation of the rights of third persons not before the court. This rule is also known as the prohibition against third-party standing. The over breadth doctrine is an exception to the prohibition against third-party standing. It permits aperson to challenge a statute on the ground that it violates the First Amendment (free speech) rights of third parties not before the court, even though the law is constitutional as applied to that defendant. In other words, the over breadth doctrine provides that: “Given a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court.”

6

Commercial speech The Supreme Court of the United States has prescribed the four-prong Central Hudson test to determine whether a governmental regulation of commercial speech is constitutional. This test asks initially: 1) whether the commercial speech at issue is protected by the First Amendment (that is, whether it concerns a lawful activity and is not misleading) and 2) whether the asserted governmental interest in restricting it is substantial. “If both inquiries yield positive answers,” then to be constitutional the restriction must; 3) “directly advance the governmental interest asserted,” and 4) be “not more extensive than is necessary to serve that interest. Private vs. Government speech The Government Speech doctrine establishes that the government may advance its own speech without requiring viewpoint neutrality when the government itself is the speaker. Freedom of religion “No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights” (Section 5, Article III). Non-establishment clause means that the State cannot establish or sponsor an official religion. The nonestablishment clause prohibits the State from passing “laws which aid one religion, aid all religions, or prefer one religion over another” The values non-establishment seeks to protect are voluntarism and insulation of the political process from interfaith dissension. Such voluntarism cannot be achieved unless the political process is insulated from religion and unless religion is insulated from politics. Benevolent neutrality is summarized into four propositions or tests: 1) Government must not prefer one religion over another religion or irreligion because such preference would violet voluntarism and breed dissension; 2) Government funds must not be applied to religious purposes because this too would violate voluntarism and breed interfaith dissension; 3) Government action must not aid religion because this too can violate voluntarism and breed interfaith dissension; and 4) Government action must not result in excessive entanglement with religion because this too can violate voluntarism and breed interfaith dissension. Free exercise clause “Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen for of religion. Thus the Amendment embraces two concepts – freedom to believe and freedom to act. The judicial task in free exercise cases is one of balancing the secular interest of the state with the interest of religion. The tests are: 1) Clear and present danger test - The question in every case is whether the action used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. 2) Compelling state interest test effectuates the First Amendment‟s command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit 7

encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling government interest „of the highest order‟” Benevolent neutrality With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain circumstances. Accommodations are government policies that take religion specifically into account not to promote the government‟s favoured form of religion, but to allow individuals and groups to exercise their religion without hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a person‟s or institution‟s religion. Balancing of Interests In weighing the state‟s interest and religious freedom, when these collide,. three questions are answered in this process. First, “has the statute or government action created a burden on the free exercise of religion?” The courts often look into the sincerity of the religious belief, but without inquiring into the truth of the belief because the Free Exercise Clause prohibits inquiring about its truth; Second, the court asks: “is there a sufficiently compelling state interest to justify this infringement of religious liberty?” In this step, the government has to establish that its purposes are legitimate for the state and that they are compelling; and Third, the court asks: “has the state in achieving its legitimate purposes used the least intrusive means possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the state?” The analysis requires the state to show that the means in which it is achieving its legitimate state objective is the least intrusive means, i.e., it has chosen a way to achieve its legitimate state end that imposes as little as possible on religious liberties. Strict neutrality Strict neutrality holds that government should base public policy solely on secular considerations, without regard to the religious consequences of its actions. Liberty of Abode and Freedom of Movement “The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of court. Neither shall the right to travel, be impaired except in the interest of national security, public safety, or public health, as may be provided by law”(Section 6, Art. III). The limitations on the right to travel are for the interest of: a) national security b) public safety; and c) public health Right to information “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law” (Section 7, Art. III) The standards that have been developed for the regulation of speech and press and assembly and petition and of association are applicable to the right of access to information. Those are the dangerous tendency rule, the clear and present danger and the balancing of interest test. 8

Right of Association “The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged” (Section 8, Article III). Eminent Domain “Private property shall not be taken for public use without just compensation” (Section 9, Art. III) Just compensation “The compensation given to the owner is just if he receives for his property a sum equivalent to its “market value”. “Market value” is the price fixed by the buyer and seller in the open market in the usual and ordinary course of legal trade and competition; the price and value of the article established or shown by sale, public or private, in the ordinary way of business; the fair value of property between one who desires to purchase and one who desires to sell; the current price; the general or ordinary price for which property may be sold in that locality. To the market value must include “CONSEQUENTIAL DAMAGES”. From the consequential damages must be deducted the CONSEQUENTIAL BENEFITS, which is the increase in the value of the other interests of the owner that can be attributed to the new use to which his former property will be put by the expropriating authority (Manila Railroad Co. v. Rodriguez 13 Phil. 347 (1909). The elements of the taking which could be the subject of judicial review are: 1) taking of private property‟ 2) taking must be for public use; 3) there must be just compensation The circumstances for taking are: 1) entry upon the private property by the expropriator 2) entry must be permanent; 3) entry under warrant or colour of legal authority 4) public use 5) ousted the owner of his beneficial use or enjoyment of the property Kinds of expropriation (keyword: ONE) 1) Ordinary expropriation (Section 9, Article III) Private property for public use. 2) Natural expropriation - Private property permanently inundated by water like change of river course. 3) Extraordinary expropriation (Section 4, Article XIII) Private property for distribution to private persons in the interest of agrarian reform. Exercise of local government expropriation requires an ORDINANCE( not a resolution) passed by the council empowering the mayor to exercise expropriation and at the same time appropriating budget thereof. Prior to the exercise of eminent/inferior domain, the government must make a prior offer to buy the land. If the owner refused, the local government may initiate expropriation proceedings. The requirements are: 1) 2) 3) 4)

An ordinance passed by the council authorizing the mayor, in behalf of the LGU, to exercise the power of eminent domain; The power is exercised for public use, or public welfare, or for the benefit of the poor and the landless; Payment of just compensation; A valid and definite offer has been previously made but said offer was refused (Jesus is Lord School v. Municipality of Pasig, G.R. No. 152230, August 9, 2005) 9

Contract Clause “No law impairing the obligation of contracts shall be passed” Section 10, Article III). The law impairs the obligation of contracts when: 1) it changes the terms of a legal contract between the parties, either in time or mode of performance; 2) it imposes new conditions or dispenses with those expressed; and 3) it authorizes for its satisfaction something different from that provided in the terms. Legal assistance and free access to courts “Free access to courts, quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty” (Section 11, Article III). Rights of suspects (Section 12, Art. III) (1) “Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have a competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation of any other means which vitiates the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar form of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture of similar practices, and their families.” The rights available to a person under investigation are: 1) the right to remain silent 2) the right to competent and independent counsel preferably of his own choice; 3) the right to be informed of such rights. “Custodial investigation” shall include the practice of issuing an INVITATION to a person who is investigated in connection with an offense he is suspected to have committed without prejudice to the liability of the “inviting officer” for any violation of law (Republic Act 7438; People vs. Dumantay, G.R. No. 130612, May 11, 1999) Guidelines for arresting officers 1) The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any; 2) He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence against him; 3) He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice; 4) He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided to him; 10

5) That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made; 6) The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means, e.g., by telephone, radio, letter or messenger, with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him or by anyone of his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-government organization; 7) He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly, and intelligently, and ensure that he understood the same; 8) In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done i writing and in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insists on his waiver and chooses to speak; 9) The person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned with a warning that once he makes such indication the police may not interrogate him if the same had not yet commenced, or the interrogation must cease if it has already begun; 10) The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of whether he may have answers some questions or volunteered some statements; and 11) He must be informed that any statement or evidence, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in evidence (People v. Mahinay, G.R. No. 122485, February 1, 1999). Rights of the accused Section 14, Article III “No person shall be held to answer for a criminal offense without due process of law”. Factors to consider in determining bail: 1) Nature of the offense; 2) Ability of the accused to post bail; 3) Penalty imposed by law; 4) Strength of the evidence; 5) Character and reputation of the accused; 6) Health of the accused; 7) Probability of the accused appearing for trial; 8) The forfeiture of bonds; 9) whether the accused is a fugitive from justice when arrested; and 10) whether the accused is under bond in other cases Presumption of innocence “In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and the failure to appear is unjustifiable.” Ingredients of due process as applied in criminal proceedings: 1) the accused has been heard in a court of competent jurisdiction; 2) the accused is proceeded against under the orderly processes of law; 3) the accused has been given notice and the opportunity to be heard; and 11

4)

the judgment was within the authority of a constitutional law

The basic rights of the accused are: 1) the right to be presumed innocent; 2) to be heard by himself and counsel; 3) to be informed of the nature and cause of the charge 4) to have a speedy, impartial and public trial; 5) the right of confrontation; and 6) the right to have compulsory process The right to have compulsory process for the attendance of witnesses. In order to establish the right to continuance by reason of the absence of witnesses the accused must show: 1) 2) 3) 4)

that the witness is really material; that he is not guilty of any neglect in previously obtaining attendance of said witness; that the witness will be available at the time desired; and that no similar evidence could be obtained (U.S. v. Ramirez, 39 Phil 738 (1919).

Habeas Corpus “The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when public safety requires it” (Section 15, Article III). Writ of habeas corpus is a writ issued by a court directed to a person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his caption and detention, to do, to submit to and to receive whatever the court or judge awarding the writ shall consider in his behalf. The ultimate purpose of the writ is to relieve a person from unlawful restraint. Grounds for suspension of the privilege of habeas corpus; duration; power of Congress; review power of the Supreme Court; application of suspension; martial law and suspension of the privilege. “In case of invasion or rebellion, when the public safety requires it, the President may for a period not exceeding sixty (60) days, suspend the privilege of the writ of habeas corpus x x x. Significant number of days in case of the suspension of the privilege of habeas corpus: 1)

2) 3) 4)

President to suspend the privilege of habeas corpus – 60 days any extension is upon the initiative of the President the period of which is subject to determination by the Congress on persistence of invasion or rebellion and public safety requires it. President to report in person or in writing to the Congress – 48 hours from the suspension of the privilege of the writ of habeas corpus The Supreme Court may review and render decision thereon within 30 days from filing Any person arrested should be judicially charged within 3 days if not, shall be released.

Note: To revoke either the proclamation of martial law or suspension of the privilege of habeas corpus CONGRESS HAS TO MEET AND VOTE JOINTLY BY A VOTE OF MAJORITY of all its members in regular or special session Section 18, Art. VII).

12

Writ of Amparo The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof (Section 1) Who May File. – The petition may be filed by the aggrieved party or by any qualified person or entity in the following order: (a) Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party; (b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; (c) Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party. Where to File. – The petition may be filed on any day and at any time with the Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. Self-Incrimination clause “No person shall be compelled to be a witness against himself” (Section 17, Article III). It was established on the ground of public policy and humanity: Of policy, because, if the party were required to testify, it would place the witness under the strongest temptation to commit perjury; The right against self-incrimination is available not only in criminal prosecutions but also in other government proceedings, civil actions, and administrative or legislative investigations. It may be claimed not only by the accused but any witness to whom the incriminating question is directed. It may be invoked only by “natural individuals”. The guarantee/immunity of the witness may be transactional immunity and “use and fruit immunity” (Immunity statutes) a) Transactional immunity is one granted by the Commission on Human Rights to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by CHR which makes the witness immune from criminal prosecution for an offense to which his compelled testimony relates (Art XIII, Section 18 (8). b) Use and Fruit immunity is one which prohibits the use of the witness‟compelled testimony and of its fruits in any manner in connection with the criminal prosecution of the witness (Galman v. Pamaran, 138 SCRA 274) Waiver of right against self-incrimination There are two ways of waiving this right : a) Directly done – an accused who takes the witness stand voluntarily and offers testimony in his behalf may be cross-examined and asked incriminating questions on any matter he testified to on direct examination; b) Failure to invoke it. 13

Involuntary Servitude and political prisoners “No person shall be detained solely by reason of his political beliefs or aspirations” (Section 18 (1), Art. III). Exceptions are: a) punishment for a crime whereof the party shall have been convicted‟ b) service in defense of the State (Section 4, Art II); c) naval (merchant marine) enlistment d) posse comitatus e) return to work order in industries affected with public interest f) patria potestas Proscribed punishments “(1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death be imposed, unless for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. (2) The employment of physical, psychological, or degrading punishment against prisoner or detainee, or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law” (Section 19, Art. III). Non-imprisonment for debts “No person shall be imprisoned for debt or non-payment of a poll tax” (Section 20, Art. III). Double jeopardy “No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act” (Section 21, Art. III ). To raise the defense of double or second jeopardy, three (3) requisites must be shown: 1) a first jeopardy must have attached prior to the second (fjaps) 2) the first jeopardy must have terminated (fjt) 3) the second jeopardy must be for the same offense as that of the first (sjsoaf) For jeopardy to attach Jeopardy attaches: 1) upon good indictment (gi) or valid complaint 2) filed before a competent court (cc) 3) after arraignment (aa) 4) after plea (ap) 5) defendant was previously acquitted or convicted, or the case dismissed or otherwise terminated without his express consent. Doctrine of supervening event. The accused may still be prosecuted for another offense if a subsequent development changes the character of the first indictment under which the accused may have already been charged or convicted. Thus, under Section 7, rule 117, Rules of Court, the conviction of the accused shall 14

not be a bar to another prosecution for an offense which necessarily includes the offense charged in the original complaint or information when: 1) the graver offense developed due to supervening facts arising from the same act or omission; 2) the facts constituting the graver offense arose or were discovered only after the filing of the former complaint or information; or 3) the plea of guilty to a lesser offense was made without the consent of the fiscal or the offended party (People v. Villarama, 210 SCRA 246). Ex post facto law and bill of attainder “No ex post facto law or bill of attainder shall be enacted” (Section 22, Art. III). Kinds of ex post facto law: 1) Every law that makes criminal an action done before the passage of the law and which was innocent when done, and punishes such action (“Nulla poena sine lege”, there is no crime when there is no law punishing it). Art. 21 of RPC provides: “No crime of misdemeanour shall be punished by a penalty which was not established by law prior to its commission.” 2) Every law that aggravates a crime, or makes it greater than it was when committed 3) Every law that changes punishment, and inflicts a greater punishment than the law annexed to the crime when committed; 4) Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the defendant (Mekin v. Wolfe, 2 Phil. 74, 77-8 (1903); 5) Every law which, assuming to regulate civil rights and remedies only in effect imposes a penalty or the deprivation of a right for something which when done was lawful (In re Kay Villegas Kami, 35 SCRA 429, 431 October 22, 1970). 6) Every law which deprives persons accused of a crime of some lawful protection to which they have become entitled such as the protection of a former conviction or acquittal, or of a proclamation of amnesty. Bill of attainder is a legislative act which inflicts punishment without judicial trial (Cummings v. Missouri) If the penalty be less than death, the act is termed bill of pains and penalties.

15

Election Law Suffrage. “Suffrage may be exercised by: 1) all citizens of the Philippines not otherwise disqualified by law, 2) who are at least eighteen (18) years of age, 3) and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six (6) months immediately preceding the election”( Section 1, Art. V). Disqualified to vote are the following: a)

Any person who has been sentenced by final judgment to suffer imprisonment of not less than one year, such disability not having been removed by plenary pardon: Provided, however, that any person disqualified to vote under this paragraph shall AUTOMATICALLY reacquire the right to vote upon expiration of five years after service of sentence;

b)

Any person who has been adjudged by final judgment by competent court or tribunal of having committed any crime involving disloyalty to the duly constituted government, such as rebellion, sedition, violation of the anti-subversion and firearms laws, or any crime against national security, unless restored to his full civil and political rights in accordance with law: provided, that he shall regain to vote automatically upon expiration of five years after service of sentence.

c)

Insane or incompetent persons as declared by competent authority.

Registration of voters In order that a qualified elector may vote in any election, plebiscite or referendum, he must be registered in the permanent list of voters for the city or municipality in which he resides (Section 115, PD 1986). Quo Warranto It is a proceeding to determine the right to use or exercise an office and to oust the holder from its enjoyment, if his claim is not well founded or if he has forfeited his right to enjoy the privilege. The Lone Candidate Law: provides:

Republic Act No. 8295 enacted on June 6, 1997. Section 2 thereof

“Upon the expiration of the deadline for the filing of the certificate of candidacy in a special election called to fill a vacancy in an elective position other than for President and Vice-President, when there is only one (1) qualified candidate for such position, the lone candidate shall be proclaimed elected to the position by proper proclaiming body of the Commission on Election without holding the special election upon certification by the Commission on Elections that he is the only candidate for the office and is thereby deemed elected.” Distinguish Election Protest from Petition for Quo Warranto “In Samad v. COMELEC, we explained that a petition for quo warranto under the Omnibus Election Code raises in issue the disloyalty or ineligibility of the winning candidate. It (quo warranto) is a proceeding to unseat the respondent from office but not necessarily to install the petitioner in his place. An election protest is a contest between the defeated and winning candidates on the ground of frauds or irregularities in the casting and counting of the ballots, or in the preparation of the returns. It (election protest) raises the questions of who actually obtained the plurality of the legal votes and therefore is entitled to hold office (Dumayas, Jr., v. COMELEC, G.R. No. 141952-53, April 20, 2001, en banc). 16

“While the right to a public office is personal and exclusive to the public officer, an election protest is not purely personal and exclusive to the protestant or to the protestee such that after the death of either would oust the court of all authority to continue the protest proceedings. An election content, after all, involves not merely conflicting private aspirations but is imbued with paramount public interests. The death of the protestant neither constitutes a ground for the dismissal of the contest or nor ousts the trial court of its jurisdiction to decide the election contents” (De Castro v. COMELEC, 267 SCRA 806, Feb. 7, 1987)

17

Local Government Constitutional bases: a)

“The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided” (Section 1, Art. X).

b) “The State shall ensure the autonomy of local governments.” (Section 25, Art. II c) The territorial and political subdivisions shall enjoy local autonomy” (Section 2, Art. X). Autonomy is either: a) decentralization of administration; or b) decentralization of power. Decentralization of administration – this means decentralization of administrative powers to broaden the base of government power and in the process make local governments more responsive and accountable, and ensure their fullest development as self-reliant communities and make them effective partners in the national development and social progress Decentralization of power – is the abdication of political power for the local government to charts its destiny and shape its future with minimum intervention fro the central government.

18

Public International Law Concepts 1) Obligations erga omnes In international law it has been used as a legal term describing obligations owed by states towards the community of states as a whole. An erga omnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights (and the prevention of their breach). Consequently, any state has the right to complain of a breach. Examples of erga omnes norms include piracy, genocide, slaver, torture, and racial discrimination. 2) Jus cogens Jus cogens are a body of peremptory principles of international law that are universal and nonderogable. In effect, jus cogens (Latin for "compelling law) represent fundamental norms of international law that apply to all states. Jus cogens is the highest branch of law because it supersedes all other types of law. In fact, if a treaty is drafted in violation of jus cogens than the treaty is rendered null and void. The following are generally considered jus cogens norms (this is not necessarily an exhaustive list): the prohibition on the aggressive use of force, war crimes, genocide, crimes against humanity, slavery, racial discrimination, piracy, and torture. 3) Concept of aeguo et bono Ex aequo et bono (Latin for "according to the right and good" or "from equity and conscience") is a phrase derived from Latin that is used as a legal term of art. In the context of arbitration it refers to the power of the arbitrators to dispense with consideration of the law and consider solely what they consider to be fair and equitable in the case at hand. International and national law International law is where many countries agree on a law, while national law applies only to the country that made them. In case of conflict between international law and national (municipal) law, which should prevail? 1. When our Court shall decide: a) When the conflict is with the Philippine Constitution, our Court shall rule in favour of our Constitution because of Section 5 (2)(a) Art. VIII. b) When the conflict is with our statute the principle of lex posterior derogat priori (that which comes last in time) will usually be upheld by the municipal/national tribunal. However, there were cases that our Court still decided in favour of the local situation like exercise of police power. 2. When International tribunal will decide: The international tribunal shall sustain international law at it provides the standard in the determination of the legality of State‟s conduct.

19

Sources of international law 1. Primary (direct) sources are: a) treaties or conventions b) customs c) general principles of law (estoppel, pacta sunt servanda, consent, res judicata) 2. Secondary (indirect) sources are: a) decisions of courts, and b) writings of publicists Subjects of International law 1. States 2. International organizations 3. Individuals Diplomatic and consular law The right of legation or diplomatic intercourse is one of the most effective ways of facilitating and promoting mutual interests. Consensual as it is, the maintenance of diplomatic relations is not a demandable right on the part of either the sending or receiving state. Agents of Diplomatic intercourse a) Head of State b) The Foreign Office The heads of diplomatic missions are classified as follows: (1) Ambassadors or nuncios accredited to heads of state. (2) Envoys, ministers or internuncios accredited to heads of state‟ (3) Charge‟s d‟ affaires accredited to ministers for foreign affairs Included in the diplomatic mission are: (1) diplomatic staff (2) administrative and technical staff (3) service staff Agreation – informal inquiries addressed to the receiving state regarding a proposed diplomatic representative of the sending state. Appointment of the representative is made only when the receiving state manifests its agreement or consent. This is done to avoid Art 4 of the Diplomatic Convention which provides that “the receiving state is not obliged to give reasons for a refusal of agreement. The Diplomatic Convention provides: “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving state shall treat him with due respect and shall take appropriate steps to prevent any attack on his person, freedom or dignity” (Art. 29). Article 31 of the Diplomatic Convention provides: “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state. He shall enjoy immunity from its civil and administrative jurisdiction EXCEPT in case of: (a) a real action relating to private immovable property situated in the territory of the receiving state, unless he holds it in behalf of the sending state for the purposes of the mission; (b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending state; 20

(c)

an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his office ial functions” “Any writ of process sued out or prosecuted by any person in any court of the Republic of the Philippines, or by any judge or justice, whereby the person of any ambassador or public minister of any foreign state, authorized and received as such by the President, or any domestic servant of any such ambassador or minister is arrested or imprisoned, or his goods or chattels are distrained, seized or attached, shall be deemed void, and every person by whom the same is obtained and prosecuted, whether as party or as attorney, and every officer concerned in executing it, shall, upon conviction, be punished by imprisonment for the more than three (3) years and a fine not exceeding two hundred pesos in the discretion of the court” (R.A. 75)

Note: The diplomatic retinue consists of the diplomatic staff, administrative and technical staff enjoys the same rights as the diplomatic staff EXCEPT that immunity from civil and administrative jurisdiction shall not extend to unofficial acts. The private servants of the official members of the mission, if they are not nationals or permanent residents of the receiving state, ENJOY ONLY exemption from dues and taxes on their income from the mission and such other immunities and privileges as may be granted by the receiving state (Art. 37, 38, Diplomatic Convention). AP.7

Diplomatic asylum has not received universal recognition except when it is extended for humanitarian reasons, as when the fugitive seeking sanctuary is in immediate danger of his life or safety. Asylum may also be granted on the strength of usage , particularly in favour of political refugees, or of treaty stipulations.

Treaties Treaty-making process: a) Negotiation b) Signature c) Ratification d) Exchange Under the Philippine Constitution, “the power to ratify treaties is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is confined simply to giving or withholding its consent ( a “veto power” as Corwin calls it) to the ratification . For that matter, it is competent for the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, to refuse to ratify it. But as a rule, he cannot ratify a treaty without the concurrence of two-thirds of all members of the senate” International Law. Cruz 1998 Edition) Observance of treaty (pacta sunt servanda) “international agreements must be performed in good faith.” This principle has exception under the doctrine of “rebus sic stantibus” – would justify nonperformance of a treaty obligation if the conditions with relation to which the parties contracted have changed so materially and so unexpectedly as to create a situation in which exaction of performance would be unreasonable (Cruz, International Law, 1998 Edition). Note: a) “rebus sic stantibus applies only to treaties of indefinite duration; b) the vital change must have been unforeseen or unforeseeable and should not have been caused by the party invoking it; c) reasonable time to invoke d) cannot operate retroactively upon the provisions of the treaty already executed prior to the change of circumstances. 21