Pointers lang First of all, I would like to stress that our course is not a law subject.

. When you start your review, always remember that this is a social science, and that being legalistic is just one side of the coin. Thus, dont miss important principles of Political Science: INTRO What is Pol Sci? etymology: Polis = city/state) + (scire = to know) therefore, it is primarily concerned with the state (or any body politic) and its affairs, organization and acitivites If you understand this definition, you can distinguish it with other sciences. Take note of the general branches of Pol Sci: 1. Political Theory 2. Public law 3. Public administration Nasa textbook niyo yan, ayoko magtype ng mahaba. As to the goals or importance of the subject, I think you can leave those. STATE What is a state? To define, just memorize the elements: 1. People 2. Territory 3. Government 4. Sovereignty Theories on the origin of states: 1. Divine right theory state is of divine creation, ruler is appointed by God 2. Necessity or force through force (mukha naman) 3. Paternalistic theory started from families 4. Social contract voluntary compact or agreement (kaya contract) State vs Nation State = political concept; nation = ethnic concept (note that in the Constitution, the distinction is immaterial) State vs government Government is an element of a state. It is the agency through which the will of the people is carried out Forms of government As to number of rulers: 1. Monarchy 2. Aristocracy 3. Democracy As to extent of powers 1. Unitary 2. Federal As to relationship between Executive and Legislative 1. Parliamentary 2. Presidential CONSITUTION That body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised. a written instrument by which the fundamental powers of government are established, limited, and defined and by which these powers are distributed among several departments, for their more safe and useful exercise, for the benefit of the body politic.

Note that the definition above does not mention rights of the people. I hope you recall our balancing of powers and rights theory Our Consti is CONVENTIONAL, WRITTEN and RIGID

II. Now let us go the PHILIPPINE CONSTITUTION: ARTICLE I THE NATIONAL TERRITORY Archipelago An archipelago is a body of water studded with islands. The Philippine archipelago is that body of water studded with islands which is delineated in the Treaty of Paris (1898), as amended by the Treaty of Washington (1900) and the Treaty of Great Britain (1930). Definition of all other territories over which the Philippines has sovereignty or jurisdiction It includes any territory that presently belongs or might in the future belong to the Philippines through any of the internationally accepted modes of acquiring territory. Archipelagic principle Two elements: 1. The definition of internal waters (as provided above); 2. The straight baseline method of delineating the territorial sea consists of drawing straight lines connecting appropriate points on the coast without departing to any appreciable extent from the general direction of the coast. ARTICLE II DECLARATION OF PRINCIPLES AND STATE POLICIES Selected principles SEC 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. Elements of a State (for municipal law purposes)

1. 2. 3. 4.

A community of persons, more or less numerous (PEOPLE) Permanently occupying a definite portion of territory (TERRITORY) Independent of external control (SOVEREIGNTY) Possessing an organized government to which the great body of inhabitants render habitual obedience (GOVERNMENT) Definition of People

1. 2. 3. 4.

A Community of persons; Sufficient in Number; Capable of maintaining the continued existence of the community; and Held together by a common bond of law. Definition of Sovereignty

1.

LEGAL sovereignty a. The supreme power to make law. b. It is lodged in the people. POLITICAL sovereignty a. The sum total of all the influences in a state, b. Legal and non-legal, c. Which determine the course of law.

2.

Definition of Government 1. 2. 3. 4. 5. That institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them. Classification of governments 1. De jure 2. De facto - one established by the authority of the legitimate sovereign - one established in defiance of the legitimate sovereign Definition of Republican State It is one wherein all government authority emanates from the people and is exercised by representatives chosen by the people. Definition of Democratic State This merely emphasizes that the Philippines has some aspects of direct democracy such as initiative and referendum. SEC. 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. Kind of war renounced by the Philippines The Philippines only renounces AGGRESSIVE war as an instrument of national policy. It does not renounce defensive war. Amity with all nations This does not mean automatic diplomatic recognition of all nations. Diplomatic recognition remains a matter of executive discretion. SEC 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory. Civilian authority/supremacy clause (1st sentence) 1. 2. Civilian authority simply means the supremacy of the law because authority, under our constitutional system, can only come from law. Under this clause, the soldier renounces political ambition.

SEC 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military, or civil service. SEC. 5. The maintenance of peace and order, the protection of life, liberty and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. SEC. 6. The separation of Church and State shall be inviolable.

Selected state policies

SEC. 7. The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination. SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory. Policy of freedom from nuclear weapons 1. The policy PROHIBITS: a. The possession, control and manufacture of nuclear weapons b. Nuclear arms tests. The policy does NOT prohibit the peaceful uses of nuclear energy.

2.

SEC. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. etc. Principle that the family is not a creature of the state. Protection for the unborn 1. 2. It is not an assertion that the unborn is a legal person. It is not an assertion that the life of the unborn is placed exactly on the level of the life of the mother. Hence, when it is necessary to save the life of the mother, the life of the unborn may be sacrificed. Under this provision, the Roe v. Wade doctrine allowing abortion up to the 6 th month of pregnancy cannot be adopted in the Philippines because the life of the unborn is protected from the time of conception.

3.

SEC. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. 1. While the right to a balanced and healthful ecology is found under the declaration of Principle and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. (Oposa v. Factoran) The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. (Oposa v. Factoran)

2.

SEC. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law. SEC. 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption. SEC. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. ARTICLE III 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. 1. BILL OF RIGHTS The Bill of rights is a guarantee that there are certain areas of a persons life, liberty and property which governmental power may not touch. The Bill of rights is a declaratory of fundamental principles and of the basic rights of citizenship.

It enumerates some of the private and inalienable rights of the people, and it has been said that the rights protected by the Bill of Rights are those that inhere in the great and essential principles of liberty and free government. The rights in the Bill of Rights are sometimes referred to as natural laws and as being founded on natural right and justice. Any governmental action in violation of the rights declared in the Bill of Rights is void, so that the provisions of a Bill of Rights are self executing to this extent; however, the legislature may enact laws to protect and enforce the provisions of the Bill of Rights. To the law of force rather than the force of law, it is necessary to remind ourselves that certain basic rights and liberties are immutable (unchangeable) and cannot be sacrificed to the transient needs or imperious demands of the ruling power. The rule of law must prevail or else liberty will perish. The provisions of the bill of rights are primarily limitations on government, declaring rights that exist without any governmental grant, that may not be taken away by government and that government has duty to protect. The fundamental human rights conferred by the Constitution are not absolute. The totality of governmental power is contained in the three (3) great powers: police power, power of eminent domain, and power of taxation. These are inherent powers of government. A constitution can only define and delimit them and allocate their exercise among various government agencies.

BALANCING THE RIGHTS OF PERSONS AND POLICE POWER For the proper defense and protection of freedom, a political institution must possess power. Hence, government becomes the delicate art of balancing the power of government and the freedom of the governed. Definition of Police Power: 1) 2) 3) 4) 5) 6) 7) 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 subjects of the same.

POLICE POWER The power of promoting the public welfare by restraining and regulating the use of liberty and property. The power vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinance, 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 subjects of the same. The power of the state to regulate liberty and property for the promotion of the general welfare. The persons acts and acquisitions are hemmed in the police power.

It is the most essential, insistent and the least limitable of powers, extending as it does to all the great public needs. Police power rests upon public necessity and upon the right of the state and of the public to self protection. Negatively, police power is defined as that inherent and plenary (full) power in the State which enables it to prohibit all that is hurtful to the comfort, safety, and welfare of society. (Ermita V Mayor of Manila) public health public safety public morals general welfare

SCOPE OF POLICE POWER Police power rests upon public necessity and upon the right of the State and of the public to self protection. For this reason, its scope expands and contracts with changing needs. POWER OF EXPROPRIATION OR POWER OF EMINENT DOMAIN Enables the state to forcibly acquire private property, upon payment of just compensation, for some intended public use. Power of expropriation is the highest and most exact idea of property remaining in the government that may be acquired for some public purpose through a method in the nature of compulsory sale to the state. The provision should be strictly interpreted against the expropriator and liberally in favor of the property owner. The exercise of this power is necessarily in derogation of private rights, and the rule in that case is that the authority must be strictly construed. Except for police power and power of taxation, only the power of expropriation may be exercised by public and private corporations.

POWER OF TAXATION The state is able to demand from the members of society their proportionate share or contribution in the maintenance of the government. Importance of taxation derives from the unavoidable obligation of the government to protect the people and extend them benefits in the form of public projects and services.

Right to life The constitutional protection to life is not just a protection of the right to be alive or to the security of ones limb against physical harm. The right to life is the right to a good life. Right to liberty Includes that right to exist and the right to be free from arbitrary restraint or servitude. The right to enjoy the faculties to which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. The chief elements to the guarantee are the right to contract, the right to choose ones employment, the right to labor and the right to locomotion.

Not only physical liberty but also intellectual liberty.

Right to property Protected property include all kinds of property found in the Civil Code. It has been deemed to include vested rights. Example: 1. The right to labor, such that an employee may not be removed without giving due process; and 2. The right to public office. HEIRARCHY OF RIGHTS: PRIMACY OF HUMAN RIGHTS OVER PROPERTY RIGHTS The primacy of human rights over property rights are recognized. Because these freedoms are delicate and vulnerable, as well as supremely precious in our society and the threat of sanctions may deter their exercise almost as potently as the actual application of sanctions, they need breathing space to survive, permitting government regulation only with narrow specificity. Property and property rights can be lost through prescription; but human rights are imprescriptible. If human rights are extinguished by the passage of time, then the Bill of Rights us a useless attempt to limit the power of government and ceases to be an efficacious shield against tyranny of officials, of majorities, of the influential and powerful, and of oligarchs. Property is not a basic right. Property has an intimate relation with life and liberty. Protection of property was a primary object of the social compact and that the absence of such protection could well lead to anarchy and tyranny. Property is an important instrument for the preservation and enhancement of personal dignity. Property is as important as life and liberty and to protect their (poor) property is really to protect their life and their liberty.

Aspects of Due Process: 1. 2. Procedural due process refers to the mode of procedure which government agencies must follow in the enforcement and application of laws. Substantive due process prohibition against arbitrary laws.

Note: PROCEDURAL DUE PROCESS: 1. A law which hears before it condemns. 2. Due process of law contemplates notice and opportunity to be heard before judgment is rendered affecting ones person or property 3. Due process depends on circumstances; it varies with the subject matter and the necessities of the situation. Equal Protection of the law The equality that it guarantees is legal equality or the equality of all persons before the law. It does not demand absolute equality. It merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. Requisites for valid classification purposes of the equal protection clause The classification must: for

1. 2. 3. 4.

Rest on SUBSTANTIAL DISTINCTIONS Be GERMANE to the purposes of the law NOT LIMITED TO EXISTING CONDITIONS only APPLY EQUALLY to all members of the SAME CLASS.

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches 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 person or things to be seized. General Rule: Search and seizures are unreasonable UNLESS authorized by a validly issued search warrant or warrant of arrest Requisites for a valid warrant:

1. 2. 3. 4.

It must be issued upon PROBABLE CAUSE. The existence of probable cause is determined personally by the JUDGE. The judge must EXAMINE UNDER OATH the complainant and the witnesses he may produce. The warrant must PARTICULARLY DESCRIBE the place to be searched and person or things to be seized. Definition of PROBABLE CAUSE

For the issuance of a warrant of arrest: Probable cause refers to 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. For the issuance of a search warrant: Probable cause would mean 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 to be searched. Note: Probable cause for the issuance of a search warrant does NOT require that the probable guilt of a specific offender be established, unlike in the case of a warrant of arrest. Existence of probable cause DETERMINED PERSONALLY BY THE JUDGE Procedure: 1. The judge personally evaluates the report and supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest or 2. If on the basis thereof, the judge finds no probable cause, he may disregard the fiscals report and require the submission of supporting affidavits of witnesses to aid him in arriving at the conclusion as to the existence of probable cause. . VALID WARRANTLESS SEARCH 1. Search made as an incident to lawful arrest A. An officer making an arrest may take from the person arrested:

i. ii. iii. iv.

Any money or property found upon his person which was used in the commission of the offense or Was the fruit thereof or Which might furnish the prisoner with the means of committing violence or escaping or Which may be used in evidence in the trial of the case

B. The search must be made simultaneously with the arrest and it may only be made in the area within the reach of the person arrested 2. Search of moving vehicles A. This exception is based on exigency. Thus, if there is time to obtain a warrant in order to search the vehicle, a warrant must first be obtained. B. The search of a moving vehicle must be based on probable cause. 3. Seizure of goods concealed to avoid customs duties/authorized under the Tariffs and Customs Code A. The Tariffs and Customs Code authorizes persons having police authority under the Code to effect search and seizures without a search warrant to enforce customs laws. B. Exception: A search warrant is required for the search of a dwelling house. C. Searches under this exception include searches at borders and ports of entry. Searches in these areas do not require the existence of probable cause Seizure of evidence in plain view A. To be a valid warrantless search, the articles must be open to the eye and hand. B. The peace officer comes upon them inadvertently. 5. Waiver of right A. Requisites of a valid waiver: i. ii. iii. The right exists. The person had actual or constructive knowledge of the existence of such right. There is an actual intention to relinquish such right.

4.

B. The right against unreasonable searches and seizures is a personal right. Thus, only the person being searched can waive the same. C. Waiver requires a positive act from the person. Mere absence of opposition is not a waiver. D. The search made pursuant to the waiver must be made within the scope of the waiver. VALID WARRANTLESS ARRESTS 1. 2. 3. When the person to be arrested has committed, is actually committing, or is about to commit an offense in the presence of the arresting officer. When an offense has in fact just been committed and the arresting officer has personal knowledge of facts indicating that the person to be arrested has committed it. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. Waiver of an invalid arrest: When a person who is detained applies for bail, he is deemed to have waived any irregularity which may have occurred in relation to his arrest.

4.

5.

Hot pursuit A. The pursuit of the offender by the arresting officer must be continuous from the time of the commission of the offense to the time of the arrest. B. There must be no supervening event which breaks the continuity of the chase.

6.

Stop and frisk When a policeman observes suspicious activity which leads him to believe that a crime is about to be committed, he can investigate the suspicious looking person and may frisk him for weapons as a measure of self-protection. Should he find, however, a weapon on the suspect which is unlicensed, he can arrest such person then and there for having committed an offense in the officers presence.

2. Section 3. (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 proceedings. Types of communication protected: Letters, messages, telephone calls, telegrams and the like. Exclusionary rule: Any evidence obtained shall be inadmissible for any purpose in any proceeding. However, in the absence of governmental interference, the protection against unreasonable search and seizure cannot be extended to acts committed by private individuals Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or of the right of the people peaceably to assemble and petition the government for redress of grievances. What are considered protected speech: Protected speech includes every form of expression, whether oral, written, tape or disc recorded. It includes motion pictures as well as what is known as symbolic speech such as the wearing of an armband as a symbol of protest. Peaceful picketing has also been included within the meaning of speech. Prohibitions under Section 4 1. 2. Prohibition against PRIOR RESTRAINT Prohibition against SUBSEQUENT PUNISHMENT When prohibition does not apply a. During a war. Ex. Government can prevent publication about the number/locations of its troops b. Obscene publications. c. Clear and Present Danger Test: There should be a clear and present danger that the words when used under such circumstances are of such a nature as to create a CLEAR AND PRESENT DANGER that they will bring about the substantive evils that the State has a right to prevent. Section 5. 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. Clauses under Section 5

1. 2.

Non-establishment clause Free exercise of Religion

Distinction between the clauses

1.

The non-establishment clause does not depend upon any showing of direct governmental compulsion. It is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce non-observing individuals or not. The test of compliance with the non-establishment clause can be stated as follows: What are the purposes and primary effect of the enactment? If either is the advancement or inhibition of religion, the law violates the nonestablishment clause. Thus, in order for a law to comply with the non-establishment clause, two requisites must be met. First, it has a secular legislative purpose. Second, its primary effect neither advances nor inhibits religion. The free exercise of religion clause withdraws from legislative power the exertion of any restraint on the free exercise of religion. In order to show a violation of this clause, the person affected must show the coercive effect of the legislation as it operates against him in the practice of his religion. While the freedom to believe (nonestablishment) is absolute, the moment such belief flows over into action, it becomes subject to government regulation.

2.

Requisites for government aid to be allowable: 1. 2. 3. It must have a secular legislative purpose; It must have a primary effect that neither advances nor inhibits religion; It must not require excessive entanglement with recipient institutions.

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the 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. Rights guaranteed under Section 6: 1. 2. Freedom to choose and change ones place of abode. Freedom to travel within the country and outside. 1. Curtailment of rights: RIGHT 1. Liberty of abode 2. Right to travel MANNER OF CURTAILMENT Lawful order of the court and within the limits prescribed by law. May be curtailed even by administrative officers (ex. passport officers) in the interest of national security, public safety, or public health, as may be provided by law.

Section 7. The right of the people to information on matters of public concern shall be recognized. Rights guaranteed under Section 7 1. 2. Right to information on matters of public concern Right of access to official records and documents

Section 8. 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.

The right to form associations shall not be impaired without due process of law and is thus an aspect of the right of liberty. It is also an aspect of the freedom of contract. In addition, insofar as the associations may have for their object the advancement of beliefs and ideas, the freedom of association is an aspect of the freedom of speech and expression, subject to the same limitation. The right also covers the right not to join an association. Government employees have the right to form unions. They also have the right to strike, unless there is a statutory ban on them. Section 9. Private property shall not be taken for public use without just compensation. Who can exercise the power of eminent domain: 1) The national government a. Congress b. Executive, pursuant to legislation enacted by Congress 2) Local government units, pursuant to an ordinance enacted by their respective legislative bodies (under LGC) 3) Public utilities, as may be delegated by law. When is the exercise of the power of eminent domain necessary? It is only necessary when the owner does not want or opposes the sale of his property. Thus, if a valid contract exists between the government and the owner, the government cannot exercise the power of eminent domain as a substitute to the enforcement of the contract. Elements of the power of eminent domain 1) There is a TAKING of private property 2) Taking is for PUBLIC USE 3) Payment of JUST COMPENSATION "TAKING" A. Elements: CODE: E P A P O

1. 2. 3. 4. 5.

The expropriator enters the property The entrance must not be for a momentary period, i.e., it must be permanent Entry is made under warrant or color of legal authority Property is devoted to public use Utilization of the property must be in such a way as to oust the owner and deprive him of the beneficial enjoyment of his property.

B. Compensable taking does not need to involve all the property interests which form part of the right of ownership. When one or more of the property rights are appropriated and applied to a public purpose, there is already a compensable taking, even if bare title still remains with the owner. "PUBLIC USE" 1. 2. Public use, for purposes of expropriation, is synonymous with public welfare as the latter term is used in the concept of police power. Examples of public use include land reform and socialized housing.

"JUST COMPENSATION"

1. 2.

Compensation is just if the owner receives a sum equivalent to the market value of his property. Market value is generally defined as the fair value of the property as between one who desires to purchase and one who desires to sell. The point of reference use in determining fair value is the value at the time the property was taken. Thus, future potential use of the land is not considered in computing just compensation.

Section 10. No law impairing the obligation of contracts shall be passed. When does a law impair the obligation of contracts: 1) If it changes the terms and conditions of a legal contract either as to the time or mode of performance 2) If it imposes new conditions or dispenses with those expressed 3) If it authorizes for its satisfaction something different from that provided in its terms. A mere change in PROCEDURAL REMEDIES which does not change the substance of the contract, and which still leaves an efficacious remedy for enforcement does NOT impair the obligation of contracts. A valid exercise of police power is superior to obligation of contracts. Section 12. offense. Rights of person under investigation for the commission of an

Rights of person under investigation for the Commission of an offense CODE: SCISI

1) 2) 3) 4)

Right to remain silent Right to have competent and independent counsel, preferably of his own choice Right to provided with the services of counsel if he cannot afford the services of one. Right to be informed of these rights.

When rights are available: 1) AFTER a person has been taken into custody or 2) When a person is otherwise deprived of his freedom of action in any significant way. 3) When the investigation is being conducted by the government (police, DOJ, NBI) with respect to a criminal offense. 4) Signing of arrest reports and booking sheets. When rights are not available: 1) During a police line-up. Exception: Once there is a move among the investigators to elicit admissions or confessions from the suspect. 2) During administrative investigations. 3) Confessions made by an accused at the time he voluntarily surrendered to the police or outside the context of a formal investigation. 4) Statements made to a private person. a. Exclusionary rule 1) Any confession or admission obtained in violation of this section shall be inadmissible in evidence against him (the accused). 2) Therefore, any evidence obtained by virtue of an illegally obtained confession is also inadmissible, being the fruit of a poisoned tree. Requisites of valid waiver: 1) Waiver should be made in WRITING 2) Waiver should be made in the PRESENCE OF COUNSEL. Section 13. Right to bail

Who are not entitled to bail: 1) 2) 3) Persons charged with offenses PUNISHABLE by RECLUSION PERPETUA or DEATH, when evidence of guilt is strong Persons CONVICTED by the trial court. Bail is only discretionary pending appeal. Persons who are members of the AFP facing a court martial. 3. Section 14. Rights of an accused a. Rights of a person charged with a criminal offense 1. 2. 3. 4. 5. 6. 7. Right to due process of law Right to be presumed innocent Right to be heard by himself and counsel Right to be informed of the nature and cause of the accusation against him Right to have a speedy, impartial and public trial Right to meet the witnesses face to face Right to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf 4. DUE PROCESS This means that the accused can only be convicted by a tribunal which is required to comply with the stringent requirements of the rules of criminal procedure. 5. PRESUMPTION OF INNOCENCE The Constitution does not prohibit the legislature from providing that proof of certain facts leads to a prima facie presumption of guilt, provided that the facts proved have a reasonable connection to the ultimate fact presumed. Presumption of guilt should not be conclusive. 6. RIGHT TO BE HEAR BY HIMSELF AND COUNSEL The right to be heard includes the following rights: 1. Right to be present at the trial A. B. The right to be present PROMULGATION of sentence. covers the period from ARRAIGNMENT to

After arraignment, trial may proceed notwithstanding absence of accused, provided 2 requisites are met. Note, that trial in absentia is allowed only if the accused has been validly arraigned. Accused has been duly notified; and His failure to appear is unjustifiable.

C.

The accused may waive the right to be present at the trial by not showing up. However, the court can still compel the attendance of the accused if necessary for identification purposes. EXCEPTION: If the accused, after arraignment, has stipulated that he is indeed the person charged with the offense and named in the information, and that any time a witness refers to a name by which he is known, the witness is to be understood as referring to him. While the accused is entitled to be present during promulgation of judgement, the absence of his counsel during such promulgation does not affect its validity.

D.

7.

2. Right to counsel (a) Right to counsel means the right to EFFECTIVE REPRESENTATION. (b) If the accused appears at arraignment without counsel, the judge must: (i) Inform the accused that he has a right to a counsel before arraignment (ii) Ask the accused if he desires the aid of counsel

(iii) If the accused desires counsel, but cannot afford one, a counsel de oficio must be appointed (iv) If the accused desires to obtain his own counsel, the court must give him a reasonable time to get one. 3. Right to an impartial judge 4. Right of confrontation and cross-examination 5. Right to compulsory process to secure the attendance of witnesses RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION AGAINST HIM Purposes of the right: 1) To furnish the accused with a description of the charge against him as will enable him to make his defenses 2) To avail himself of his conviction or acquittal against a further prosecution for the same cause 3) To inform the court of the facts alleged. If the information fails to allege the material elements of the offense, the accused cannot be convicted thereof even if the prosecution is able to present evidence during the trial with respect to such elements. The real nature of the crime charged is determined from the recital of facts in the information. It is not determined based on the caption or preamble thereof nor from the specification of the provision of law allegedly violated. 8. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL a. Factors used in determining whether the right to a speedy trial has been violated 1) 2) 3) 4) 5) Time expired from the filing of the information Length of delay involved Reasons for the delay Assertion or non-assertion of the right by the accused Prejudice caused to the defendant.

Effect of dismissal based on the ground of violation of the accuseds right to speedy trial If the dismissal is valid, it amounts to an acquittal and can be used as basis to claim double jeopardy. This would be the effect even if the dismissal was made with the consent of the accused b. Remedy of the accused if his right to speedy trial has been violated He can move for the dismissal of the case. If he is detained, he can file a petition for the issuance of writ of habeas corpus. c. Definition of impartial trial

The accused is entitled to the cold neutrality of an impartial judge. It is an element of due process. d. Definition of public trial The attendance at the trial is open to all irrespective of their relationship to the accused. However, if the evidence to be adduced is offensive to decency or public morals, the public may be excluded. The right of the accused to a public trial is not violated if the hearings are conducted on

Saturdays, either with the consent of the accused or if failed to object thereto. RIGHT TO MEET WITNESS FACE TO FACE Purposes of the right: 1. 2. To afford the accused an opportunity to cross-examine the witness To allow the judge the opportunity to observe the deportment of the witness

Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. Distinction between Section 14 and Section 16 While the rights of an accused only apply to the trial phase of criminal cases, the right to a speedy disposition of cases covers ALL phases of JUDICIAL, QUASI-JUDICIAL or ADMINISTRATIVE proceedings. Section 17. No person shall be compelled to be a witness against himself. When is a question incriminating: A question tends to incriminate when the answer of the accused or the witness would establish a fact which would be a necessary link in a chain of evidence to prove the commission of a crime by the accused or the witness. Distinction between an accused and an ordinary witness 1. 2. An accused can refuse to take the witness stand by invoking the right against selfincrimination. An ordinary witness cannot refuse to take the stand. He can only refuse to answer specific questions which would incriminate him in the commission of an offense. Scope of right 1. 2. What is PROHIBITED is the use of physical or moral compulsion to extort communication from the witness or to otherwise elicit evidence which would not exist were it not for the actions compelled from the witness. The right does NOT PROHIBIT the examination of the body of the accused or the use of findings with respect to his body as physical evidence. Hence, the fingerprinting of an accused would not violate the right against self-incrimination. However, obtaining a sample of the handwriting of the accused would violate this right if he is charged for falsification. The accused cannot be compelled to produce a private document in his possession which might tend to incriminate him. However, a third person in custody of the document may be compelled to produce it.

3.

When the right can be invoked: 1. 2. In criminal cases In administrative proceedings if the accused is liable to a penalty (Ex. Forfeiture of property)

Who can invoke the right: Only natural persons. Judicial persons are subject to the visitorial powers of the state in order to determine compliance with the conditions of the charter granted to them. 9. Section 18. Right against involuntary servitude a. Definition of involuntary servitude It is every condition of enforced or compulsory service of one to another no matter under

what form such servitude may be disguised. Exceptions: 1. 2. 3. Punishment for a crime for which the party has been duly convicted Personal military or civil service in the interest of national defense Return to work order issued by the DOLE Secretary or the President 10. Section 19. Prohibition against cruel, degrading and inhuman punishment a. When is a penalty cruel, degrading and inhuman? 1. 2. A penalty is cruel and inhuman if it involves torture or lingering suffering. Ex. Being drawn and quartered. A penalty is degrading if it exposes a person to public humiliation. Ex. Being tarred and feathered, then paraded throughout town.

Standards used: 1. 2. 3. 4. The punishment must not be so severe as to be degrading to the dignity of human beings. It must not be applied arbitrarily. It must not be unacceptable to contemporary society It must not be excessive, i.e. it must serve a penal purpose more effectively than a less severe punishment would. b. Excessive fine A fine is excessive, when under any circumstance, it is disproportionate to the offense. Section 20. No person shall be imprisoned for debt or non-payment of a poll tax. c. Definition of debt under Section 20

1) Debt refers to a CONTRACTUAL obligation, whether express or implied, resulting in any liability to pay money. Thus, all other types of obligations are not within the scope of this prohibition. 2) Thus, if an accused fails to pay the fine imposed upon him, this may result in his subsidiary imprisonment because his liability is ex delicto and not ex contractu. 3) A FRAUDULENT debt may result in the imprisonment of the debtor if: A. The fraudulent debt constitutes a crime such as estafa and B. The accused has been duly convicted. Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. a. Requisites for a valid defense of double jeopardy: CODE: ATS 1) First jeopardy must have attached prior to the second. 2) The first jeopardy must have terminated. 3) The second jeopardy must be for the same offense as that in the first. Section 22. No ex post facto law or bill of attainder shall be enacted. Definition of ex-post facto law. 1) One which makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action.

2) 3) 4) 5) 6)

One which aggravates the crime or makes it greater than when it was committed. One which changes the punishment and inflicts a greater punishment than that which the law annexed to the crime when it was committed. One which alters the legal rules of evidence and receives less testimony than the law required at the time of the commission of the offense in order to convict the accused. One which assumes to regulate civil rights and remedies only BUT, in effect, imposes a penalty or deprivation of a right, which, when done, was lawful. One which deprives a person accused of a crime of some lawful protection to which he has become entitled such as the protection of a former conviction or acquittal, or a proclamation of amnesty.

Note: The prohibition on ex post facto laws only applies to retrospective PENAL laws. d. Definition of BILL OF ATTAINDER 1) 2) A bill of attainder is a LEGISLATIVE act which inflicts punishment W/O JUDICIAL trial. The bill of attainder does not need to be directed at a specifically named person. It may also refer to easily ascertainable members of a group in such a way as to inflict punishment on them without judicial trial. Elements of the bill of attainder INVIDIDUAL/EASILY

3)

A. There must be a LAW. B. The law imposes a PENAL burden on a NAMED ASCERTAINABLE MEMBERS of a GROUP. The penal burden is imposed DIRECTLY by the LAW W/O JUDICIAL trial.