constitutional law ii

CONSTITUTIONAL LAW II

I. Preliminaries

1. *Constitution – that body of rules and maxims in accordance with which the power of sovereignty are habitually exercised; puts limitations to the powers of government rather than being the source of powers

* Constitutional Law – is a term used to designate the law embodied in the constitution and the legal principles growing out of the interpretation and application made by courts of the constitution in specific cases

* Political Law – a branch of public law which deals with the organization and operations of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory

Constitutional Law Administrative Law Public Corporation Law Election Law

2. Purpose à To prescribe the permanent framework of a system of government, to assign to the several departments their respective powers and duties, and to establish certain first principles on which government is founded.

3. Classification

A. (1) Rigid - is one that can be amended only by a formal and usually difficult process; cumbersome; subject to ratification(2) Flexible - is one that can be changed by ordinary legislation; easier

B. (1) Written - is one whose precepts are embodied in one document or set of documents; codified(2) Unwritten - consists of rules which have not been integrated into a single, concrete form but are scattered in various sources, such as statutes of a fundamental character, judicial decisions, commentaries of publicists, customs and traditions, and certain common law principles; uncodified

C. (1) Evolved - or cumulative is the result of political evolution, not inaugurated at any specific time but changing by accretion rather than by systematic method(2) Enacted - or conventional constitution is enacted, formally struck off at a definitive time and place following a conscious or deliberate effort taken by a constituent body or ruler

D. (1) Normative - adjusts to norms(2) Nominal - not yet fully operational(3) Semantic - perpetuation of power

*The Constitution of the Philippines is written, conventional and rigid.

4. Qualities of a good written constitution1. Broad - it provides for the organization of the entire government and covers all persons and things within the territory of the State and also because it must be comprehensive enough to provide for every contingency2. Brief - must confine itself to basic principles to be implemented w/ legislative details more adjustable to change and easier to amend3. Definite - to prevent ambiguity in its provisions which could result in confusion and divisiveness among the people

5. Essential parts of a good written constitution1. Constitution of Government - The series of provisions outlining the organization of the government, enumerating its powers, laying down certain rules relative to its administration and defining the electorate.2. Constitution of Liberty - The series of proscriptions setting forth the fundamental civil and political rights of the citizens and imposing limitations on the powers of government as a means of securing the enjoyment of those rights.3. Constitution of Sovereignty - The provisions pointing out the mode or procedure in accordance with which formal changes in the fundamental law may be brought about. It has to be changed through the instrumentality of the people.

6. Interpretation/Construction of the Constitution1. Verba Legis - plain meaning rule- whenever possible the words used in the Constitution must be given their ordinary meaning except when technical terms are employed- textualist approach or intent2. Ratio legis et anima - interpretation according to spirit- words of the Constitution should be interpreted in accordance with the intent of the framers- originalism (intent of the framers; original understanding of the people)3. Ut magis valeat quam pereat - the constitution has to be interpreted as a whole(Francisco, Jr. vs. House of Representatives)

7. Self-executing provision à A constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action. (Manila Prince Hotel vs. GSIS)

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8. Amendment/Revision

a. Definition* Amendment - an alteration of one or a few specific provisions of the Constitution. Its main purpose is to improve specific provisions of the Constitution. The changes being brought about by amendments will not affect the other provisions of the Constitution.* Revision - an examination of the entire Constitution to determine how and to what extent it should be altered. A revision implies substantive change, affecting the Constitution as a whole.

* Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended. (Lambino vs. COMELEC)

b. Constituent vs. Legislative Power* Constituent – (of an assembly) able to frame or amend a constitution; a constituent council* Legislative Power – people can pass for local statutes and legislations by initiative and referendum

c. Steps in the amendatory process

1. Proposal (3 methods) - there is a process of proposing a change in the Constitutiona. Constituent Assembly - amendments and revisions- 3/4 of all its members voting separately- there were instances in which the Senate and HP will convene and vote as a whole (during the Martial Law)- since nothing is said about a joint session, it is submitted that each House may separately formulate amendments by a vote of ¾ of all its members, and then pass it on to the other House for a similar process, and disagreement can be settled through a conference committeeb. Constitutional Convention - amendments and revisions- calls for a constituent assembly first before Constitutional Convention- 2/3 of all its membersc. People's Initiative - amendments only- proposal by the people themselves

* The constitutional provision on people's initiative to amend the Constitution can only be implemented by law to be passed by Congress. No such law has been passed. (Santiago vs. COMELEC)* The people's initiative is limited to amendments to the Constitution, not to revision thereof. Extending or lifting of term limits constitutes a revision and is, therefore, outside the power of the people's initiative. (Santiago vs. COMELEC)

2. Ratification - held in a plebiscite conducted under the election law- supervised by the COMELEC- where only registered voters take part- all proposed amendments/revision made by the constituent assemblies must be submitted for ratification in a single plebiscite- there cannot be a piece-meal ratification of amendments/revisions

9. Power of Judicial Review

a. DefinitionThe judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch/instrumentality of the Government. (Art. VIII, Sec. 1)All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. (Art. VIII, Sec. 4[2])

b. Who exercises the power of judicial review?à Supreme Court and inferior courtsà The Constitution vests the power of judicial review or the power to declare a law, treaty, international or executive agreement, PD, order, instruction, ordinance or regulation not only in the Supreme Court but in all RTCs. (Mirasol vs. Court of Appeals)

Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments & orders of lower courts in:a. All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.b. All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.c. All cases in which the jurisdiction of any lower court is in issue.d. All criminal cases in which the penalty imposed is reclusion perpetua or higher.e. All cases in which only an error or question of law is involved.(Art. VIII, Sec. 5[2])

* manner: (1) Supreme Court en banc; (2) majority of the members who participated in the deliberation and voted thereon

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c. Requisites of judicial review

1. Actual Case or Controversy; Ripeness of Controversy- a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial determination- no commitment to adversorial system; the court has no authority to pass upon issues of constitutionality through advisory opinions; there should be an actual case or controversy- ripeness for adjudication - governmental act challenged should have direct adverse effect on individual challenging the act

* premature case: hypothetical, give advisory opinion, pool a problem in abstract* actual case: ripeness for adjudication

* The case must not be:1. Moot or academic2. Based on extra-legal or other similar consideration not cognizable by courts of justice3. A request for advisory opinion4. Hypothetical or feigned constitutional problems5. Friendly suits collusively arranged between parties without real adverse interests* moot and academic

* Moot Case à A moot case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness.

* Doctrine of Operative Fact [exceptions](David vs. Arroyo)The courts will decide if the cases otherwise become moot and academic if:

there is a grave violation of the Constitution the exceptional character of the situation and the paramount public interest is involved when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public the case is capable of repetition yet evading review

2. Legal Standing (Locus Standi)- standing in law- complainant/challenger should have personal or substantial interest in the case such that the party has sustained or will sustain a direct injury as a result of the governmental act that s being challenged (IBP vs. Zamora)

* real-party-in-interestà party who stands to be benefited/injured by judgment in the suità the party entitled to the avails of the suità civil / private law casesà rigid; strict

* legal standingà public / constitutional law casesà personal and substantial interest; if the person is the party who suffers or will suffer the injury pursuant to the application of governmental actà broader conceptà apply the “direct injury test”

* Suits: Requisites for Taxpayers Suit - there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional Requisites for Lawmakers Suit - there must be a claim that the official action complained of infringes upon their prerogatives as legislators Requisites for Voters Suit - there must be a showing of obvious interest in the validity of the election law in question Requisites for Concerned Citizens Suit - there must be a showing that the issues raised are of transcendental importance which must be settled

early

* Instructive elements of Transcendental Importance:(Chavez vs. Gonzales)

Character of the funds/assets involved in the case Presence of a clear case of disregard of a constitutional or statutory prohibition by a public respondent, agency or instrument of the

government Lack of any other party with a more direct and specific injury

3. The constitutional question must be raised at the earliest possible opportunity; Exceptions

*General Rule: The question must be raised in the pleadings.

* Exceptions: In criminal cases, the question can be raised at any time at the discretion of the court; In civil cases, the question can be raised at any stage of the proceedings if necessary for the determination of the case itself; & In every case, except where there is estoppel, it can be raised at any stage if it involves the jurisdiction of the court.

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* 2 kinds of estoppel: A person is barred from questioning a particular act after where he has benefited from the same act. Where a person is prevented from exercising a right, after a certain period he has slept that right.

* It is not the date of filing of the petition that determines whether the constitutional issue was raised at the earliest possible opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court can resolve the same, such that, if it is not raised in the pleadings, it cannot be considered at the trial, and if not considered at the trial, it cannot be considered on appeal. (Matibag vs. Benipayo)

4. The decision on the constitutional question must be determinative of the case itself(constituional question must be the very lis mota ) - lis mota - essence of the subject matter of the case; existing or anticipated litigation- determination of the constitutionality of the act is inevitable, cannot be avoided- the court should respect the act of the other 2 branches

* Every law has in its favor the presumption of constitutionality, and to justify its nullification, there must be a clear and unequivocal breach of the Constitution, and not one that is doubtful, speculative or argumentative. (Arceta vs. Judge Mangrobang)

d. Effects of declaration of unconstitutionality / partial unconstitutionality

1. The Orthodox View- The law is void if on its face it does not enjoy any presumption of validity because it is patently offensive to the Constitution. It produces no effect, creates no effect, and produces no duty.- if the law is inconsistent with the Constitution, then the latter shall govern- if the law has been declared unconstitutional, it is presumed that no law existed at all- traditional view

* An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.

2. The Modern View- The law is voidable if on its face it enjoys the presumption of unconstitutionality. The law becomes inoperative only upon the judicial declaration of its invalidity. The declaration produces no retroactive effect.

* Under this view, the court in passing upon the question of constitutionality does not annul or repeal the statute if it finds it in conflict with the Constitution. It simply refuses to recognize it and determines the rights of the parties just as if such statute had no existence. But certain legal effects of the statute prior to its declaration of unconstitutionality may be recognized.

II. Fundamental Powers of the State

1. Inherent powers of the State: definition, distinctions and limitations* police power- power of the State to regulate liberty and property for the promotion of the general welfare* power of eminent domain – enable the State to forcibly acquire private property, upon payment of just compensation, for some intended public use* power of taxation – the State is able to demand from the member of society their proportionate share or contribution in the maintenance of the government

à They are supposed to co-exist with the State.

Similarities: They are inherent in the State and may be exercised by it without need of express constitutional grant. They are not only necessary but indispensable. The State cannot continue or be effective unless it is able to exercise them. They are methods by which the State interferes with private rights. They all presuppose an equivalent compensation for the private rights interfered with. They are exercised primarily by the legislature.

Differences/Distinctions: police power à regulates both liberty and property

power of eminent domain & power of taxation à affects only property rights police power & power of taxation à may be exercised only by the government

power of eminent domain à may be exercised by some private entities property taken in the exercise of the police à is destroyed because it is noxious or intended for a noxious purpose

property taken under the power of eminent domain and the power of taxation àis intended for a public use or purpose and is therefore wholesome

compensation of the person subjected to the police power à is the intangible altruistic feeling that he has contributed to the general welfarecompensation involved in the other powers à is more concrete, to wit, a full and fair equivalent of the property expropriated or protection and public improvements for the taxes paid

Limitations:à The exercise of these fundamental powers is subject at all times to the limitations and requirements of the Constitution and may in proper cases be annulled by the courts of justice.2. Police Power

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a. Definitionà Police Power has been defined as the power of promoting the public welfare by restraining and regulating the use of liberty and property.à Police power easily outspaces the other two inherent powers as instruments of the State in interfering with private rights. The power of Eminent Domain and Taxation involve only property rights. By contrast, Police Power regulates not only the property, but more importantly, the liberty of private persons and virtually all the people. It is regarded as infinitely more important than eminent domain or taxation.à Police power has been defined as the “state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare.” As defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in order to foster the common good. It is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its all-comprehensive embrace.

b. Scopeà Police power regulates not only the property but, more importantly, the liberty of private persons, and virtually all the people.à The scope of police power, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits.

Characteristicsà Police power is considered the most pervasive, the least limitable, and the most demanding of the three powers. It may be exercised as long as the activity or the property sought to be regulated has some relevance to the public welfare.

à Pervasive and non-waivable: The police power is the pervasive and non-waivable power and authority of the sovereign to secure and promote all the important interests and needs — or the public order — of the general community.à Essential, insistent and illimitable: The police power of the state has been described as the most essential, insistent and illimitable of powers, which enables it to prohibit all things hurtful to the comfort, safety and welfare of society.à Dynamic: Police power is a dynamic force that enables the state to meet the exigencies of changing times. There are occasions when the police power of the state may even override a constitutional guaranty, such as that the constitutional provision on non-impairment of contracts must yield to the police power of the state. Police power is dynamic, not static, must move with the moving society it is supposed to regulate. Once exercised, it is not deemed exhausted and may be exercised repeatedly, as often as it is necessary for the protection or the promotion of the public welfare.

à Police power may sometimes use the taxing power as an implement for the attainment of a legitimate police objective.

Limits:à It is virtually limitless. Owing to the need to protect society from the inordinate assertion of individual liberty, it has been held that the police power may not be bargained away by virtue of a contract or even a treaty, so long as it is regulated in order to promote the general welfare.

c. Who exercises the power?à Police power is an inherent attribute of sovereignty. It has been defined as the power vested by the Constitution in the legislature 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 for the subjects of the same. Police power is lodged primarily in the National Legislature. It cannot be exercised by any group or body of individuals not possessing legislative power. The National Legislature, however, may delegate this power to the President and administrative boards as well as the lawmaking bodies of municipal corporations or local government units. Once delegated, the agents can exercise only such legislative powers as are conferred on them by the national lawmaking body. (MMDA vs. Bel-Air Village Association, Inc.)

d. Tests for valid exercise Lawful subject

à Lawful subject simply means that the subject of the measure is within the scope of the police power, that is, that the activity or property sought to be regulated affects the public welfare. If it does, the enjoyment of private rights may be subordinated to the interests of the greater number, in consonance of the principle “the welfare of the people is the supreme law”. (Ople vs. Torres)

Lawful meansà The means employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive upon individuals. (Lucena Grand Central Terminal vs. JAC Liner)à The means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. The lawful objective must be pursued through a lawful method. The means employed for the accomplishment of the police objective must pass to the test of reasonableness and conform to the safeguards embodied in the Bill of Rights for the protection of private rights.à Even if the purpose be within the scope of the police power, the law will still be annulled if the subject is sought to be regulated in violation of the second requirement. In Constitutional Law, the end does not justify the means. The lawful objective, in other words, must be pursued through a lawful method; that is, both the end and the means must be legitimate. Lacking such concurrence, the police measure shall be struck down as an arbitrary intrusion of private rights.

3. Power of Eminent Domain

a. Definition/Scopeà Power of eminent domain is where private property is needed for conversion to some public use with just compensation.à The power of eminent domain results in the taking or appropriation of title to, and possession of, the expropriated property.(Camarines Norte Electric Cooperative vs. Court of Appeals)à It is also called as “Power of Expropriation”à Limitation: “Private property shall not be taken for use without just compensation.” (Art. III, Sec. 9)

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b. Who may exercise the power?à The power of eminent domain is lodged in the legislative branch of the government. It delegates the exercise thereof to local government units, other public entities and public utility corporations, subject only to Constitutional limitations. Local governments have no inherent power of eminent domain and may exercise it only when expressly authorized by statute. (Masikip vs. City of Pasig)

à The following may exercise the power of expropriation:1. The Congress.2. The President of the Philippines.3. The various local legislative bodies.4. Certain public corporations – like the Land Authority and National Housing Authority.5. Quasi-public corporations – like Philippine National Railways, the Philippine Long Distance Telephone Co. and the Meralco.

* “destruction from necessity” – may be validly taken by private individuals; cannot require the conversion of the property taken to public use; nor is there any payment of just compensation

c. Requisites for exercise

1. Genuine necessity – essentially political when decided by the national legislature and are usually not subject to judicial reviewà The foundation of the right to exercise eminent domain is genuine necessity and that necessity must be of public character. Government may not capriciously or arbitrarily choose which private property should be expropriated. (Lagcao vs. Judge Labra)

2. Private property – this includes real and personal, tangible and intangible properties- exceptions: money and choses in actionà Private property is subjected to a burden for public use and benefit. (Republic of the Philippines vs. PLDT)

3. Taking in the constitutional sense – imports a physical dispossession of the owner, as when he is ousted from his land or relieved of his watch and his car and is thus deprived of all the beneficial use and enjoyment of his propertyà A number of circumstances must be present in the "taking" of property for purposes of eminent domain:

a. Expropriator must enter private property.b. Entrance must be for more than momentary period.c. Entrance must be under warrant or color of legal authority.d. Property must be devoted to public use or otherwise informally appropriated or injuriously affected.e. Utilization of property for public use must be in such a way as to oust the owner and deprive him of beneficial enjoyment

of the property.(Republic vs. Castellvi)

4. For public use – any use directly available to the general public as a matter of right and not merely of forbearance or accommodationà It is now settled doctrine that the concept of public use is no longer limited to traditional purposes. Here, as elsewhere, the idea that "public use" is strictly limited to clear cases of "use by the public" has been abandoned. The term "public use" has now been held to be synonymous with "public interest," "public benefit," "public welfare," and "public convenience." (Reyes vs. NHA)

5. Payment of just compensation – full and fair equivalent of the property taken from the private owner by the expropriator

* Equation: Just compensation = Fair Market Value + (Consequential Damage – Consequential Benefits)

a. Concept à in which the owner of condemned property is entitled to its market value; market value is that sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell would agree on as a price to be given and received therefore (NAPOCOR vs. Sps. Chiong)

b. Judicial prerogative à determination of payment of just compensation is a judicial actionà The method of ascertaining just compensation constitutes impermissible encroachment to judicial prerogatives. It tends to render the courts inutile in a matter in which under the Constitution is reserved to it for financial determination. The valuation in the decree may only serve as guiding principle or one of the factors in determining just compensation, but it may not substitute the court’s own judgment as to what amount should be awarded and how to arrive at such amount. The determination of just compensation is a judicial function. The executive department or the legislature may make the initial determination but when a party claims a violation of the guarantee in the Bill of Rights that the private party may not be taken for public use without just compensation, no statute, decree, or executive order can mandate that its own determination shall prevail over the court’s findings. Much less can the courts be precluded from looking into the justness of the decreed compensation. (EPZA vs. Dulay)

c. Need to appoint commissioners à it is mandatory; except for Agrarian Reformà This is done by the Court with the assistance of not more than three (3) commissioners. The order fixing the just compensation on the basis of the evidence before, and findings of, the commissioners would be final, too.(Manila Electric Co. vs. Pineda)

d. Form of compensation à money or cash; except bonds

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à full payment of the just compensation had to be made first, conformably to the constitutional requirement, before the title of expropriated property is transferred; compensation in cash or bonds with an accessible bank (Association of Small Landowners vs. Sec. of Agrarian Reform)

e. Reckoning point of market value of the property à date of filing of the complaint or taking whichever is earlier (as long the constitutional requirements for taking are complied); exception is on RA 7160à The general rule in determining “just compensation” in eminent domain is the value of the property as of the date of the filing of the complaint, as follows:

“Sec. 4. Order of Condemnation. When such a motion is overruled or when any party fails to defend as required by this rule, the court may enter an order of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint x x x”

The general rule, however, admits of an exception: where this Court fixed the value of the property as of the date it was taken and not at the date of the commencement of the expropriation proceedings.(NAPOCOR vs. Court of Appeals)

f. Entitlement of owner to interest à until full payment; payment of interest accrue; expropriation to payà The owner of private property should be compensated only for what he actually loses; it is not intended that his compensation shall extend beyond his loss or injury. And what he loses is only the actual value of his property at the time it is taken. This is the only way the compensation to be paid can be truly just; i.e., "just" not only to the individual whose property is taken, "but to the public, which is to pay for it."Thus, the value of petitioners' property must be ascertained as of 1960 when it was actually taken. It is as of that time that the real measure of their loss may fairly be adjudged. The value, once fixed, shall earn interest at the legal rate until full payment is effected, conformably with other principles laid down by case law.(Nepomuceno vs. City of Surigao)

g. Title to the property à only vested upon full payment of just compensation of the propertyà No piece of land can be finally and irrevocably taken from an unwilling owner until compensation is paid. This is in conformity with the just compensation requirement. (Visayan Refining vs. Camus)

h. Right of landowners in case of non-payment of just compensation à recovery of property within 5 years from the judgment of non-paymentà In summation, while the prevailing doctrine is that “the non-payment of just compensation does not entitle the private landowner to recover possession of the expropriated lots, however, in cases where the government failed to pay just compensation within five (5) years from the finality of the judgment in the expropriation proceedings, the owners concerned shall have the right to recover possession of their property. (Republic vs. Vicente Lim)

i. Right to dismiss the complaint in eminent domain à right to dismiss is not a matter of right, it needs the court approvalà Ordinarily, the dismissal of the expropriation case restores possession of the expropriated land to the landowner. However, when possession of the land cannot be turned over to the landowner because it is neither convenient nor feasible anymore to do so, the only remedy available to the aggrieved landowner is to demand payment of just compensation. (NAPOCOR vs. Court of Appeals)

j. Right to repurchase or re-acquire property à it depends; if the public purpose has been abandonedà had a right to repurchase the same if the purpose for which it was expropriated is ended or abandoned.(Mactan-Cebu International Airport vs. Court of Appeals)

d. Expropriation under Section 18, Article XIIà Section 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest.à Section 18. The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government.à It is also settled that public interest on the occasion of a national emergency is the primary consideration when the government decides to temporarily take over or direct the operation of a public utility or a business affected with public interest. The nature and extent of the emergency is the measure of the duration of the takeover as well as the terms thereof. It is the State that prescribes such reasonable terms which will guide the implementation of the temporary takeover as dictated by the exigencies of the time. (Lopez vs. PIATCO)

4. Power of Taxation

a. Conceptà enforced proportional contributions from persons and property levied by the state by virtue of its sovereignty, for the support of government and for all public needsà importance of taxation derives from the unavoidable obligation of the government to protect the people and extend benefits in the form of public projects and servicesà the method by which enforced proportional contributions are exactedà the power by which the sovereign, through its lawmaking body, raises revenue to defray the necessary expenses of government à a way of apportioning the costs of gov’t. among those who in some measure are privileged to enjoy its benefits and must bear its burdenà a “symbiotic” relationship, whereby in exchange for the protection that the citizens get from the government, taxes are paidà this is because the government cannot exist without financial support; life-blood doctrine

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à it is inherent as regards the national governmentà SC: as long as this court sits, taxation cannot be used to destroys anybody’s property

* difference between taxes imposed in taxation powers and license and permits: if taxation power – it is for purpose of raising revenue if license and permits – it is for the purpose of regulation; it is practice of police power (only the regulation expense (liberty and

property)note: Taxation should not be confiscatory and should not violate due process.

* System of Taxation: (based on the question: How can you give when you don’t have a source of income?) Progressive – as your income increases, the corresponding tax rates increases Equitable – tax is according to one’s capacity to pay; tax shall be strictly proportional to the relative value of the property Uniformity – people and property of the same class is subjected to the same tax rate (same bracket, same tax rate)

* Attributes/Characteristics of Taxation:1. A forced charge, imposition or contribution and as such it operates in invitum (against an unwilling person). Taxes are not in the

nature of contracts between the party and party but grow out of a duty to, and are the positive acts of the government, to the making and enforcing of which, the personal consent of individual taxpayers is not required.

2. It is a pecuniary burden payable in money, but such a tax is not necessarily confined to those payable in money.3. It is levied by the legislative body of the State because the taxing power is pecuniary and exclusively legislative in character. 4. It is assessed in accordance with some reasonable rule of apportionment, conformably with the constitutional mandate on

progressivity of a taxing system. (Article VI, Section 28[1], 1987 Constitution).5. It reaches even the citizen abroad and his income earned from sources outside his State; as well as all income earned in the taxing

State, whether by citizens or aliens, and all immovable and tangible personal properties found in its territory, as well as tangible personal property owned by persons domiciled therein, are subject to its taxing power (Justice Cruz, Constitutional Law, 2000 edition, 86)

6. A tax is levied for a public purpose as taxation itself involves a burden to provide revenue for public purposes of a general nature.

* Nature of taxing power: Inherent. à The power to tax, an inherent prerogative, has to be availed of to assure the performance of vital state functions. It is

the source of the bulk of public funds. Taxes being the lifeblood of the government, their prompt and certain availability is of the essence.

High prerogative of sovereignty. à As the power of taxation is a high prerogative of sovereignty, the relinquishment is never presumed and any reduction or diminution thereof with respect to its mode or its rate must be strictly construed, and the same must be coached in clear and unmistakable terms in order that it may be applied.

Legislative. à Taxing power is peculiarly and exclusively legislative in character and remains undiminished in the legislative in character and remains undiminished in the legislature in the absence of an express surrender thereof, clear and explicit in its terms.

Constitutionally limited. à The power to tax is an attribute of sovereignty. It is the strongest of all the powers of government. For all its plenitude, the power to tax has restrictions. The Constitution sets forth such limits. Adversely affecting as it does property rights, both the due process and equal protection clauses may properly be invoked to invalidate in appropriate cases a revenue measure.

* Purpose:à Taxes are the lifeblood of the government and so should be collected without unnecessary hindrance. Despite the natural reluctance to surrender part of one’s hard-earned income to the taxing authorities, every person who is able to must contribute his share in the running of the government. The government for its part, is expected to respond in the form of tangible and intangible benefits intended to improve the lives of the people and enhance their moral and material values. This symbiotic relationship is the rationale of taxation and should dispel the erroneous notion that it is an arbitrary method of exaction by those in the seat of power.

1. Revenue: à The purpose of taxation is to provide funds or property with which the State promotes the general welfare and protection of its citizens. Raising of revenues is the principal object of taxation.2. Non-Revenue:

a. Regulation: à Taxes may also be imposed for a regulatory purpose as for example, in the promotion, rehabilitation and stabilization of industry which is affected with public interest.b. Promotion of general welfare: à If objective and methods are alike constitutionally valid, no reason is seen why the state may not be levy taxes to raise funds for their prosecution and attainment. Taxation may be made to implement the state’s police power.c. Reduction of social inequality: à Made possible through the progressive system of taxation where the objective is to prevent the undue concentration of wealth in the hands of a few individuals.d. Encourage economic growth: à In the realm of tax exemptions and tax reliefs, the purpose of taxation (the power to tax being the power also not to tax) is to grant incentives or exemptions in order to encourage investments and thereby promote the country’s economic growth. e. Protectionism: à In some important sectors of the economy, taxes sometimes provide protection to local industries like protective tariffs and customs duties.

* Scope/ Legislative taxing power or discretion extends to the following: 1. Subjects and objects of tax2. Amount and rate of tax3. Purpose for which taxes are to be levied4. Apportionment of the tax ( general, limited to a particular locality, or mixed)5. Situs (location) of taxation6. Manner and mode of enforcement and collection

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b. Who may exercise?à primary the Congress because Taxing power is peculiarly and exclusively legislative in character and remains undiminished in the legislative in character and remains undiminished in the legislature in the absence of an express surrender thereof, clear and explicit in its terms

* Exceptions:1. can be delegated to the President (Art. VI, Sec. 28 par. 2)

- tariff powers of the President2. Local Government Units can also exercise and impose taxes without Congress’ delegation (Art. X, Sec. 5) to ensure local autonomy

- this is self-executing, thus there is no need for a law in delegating such power- this includes the barangay

c. Limitations on the power of taxation1) Should not be confiscatory2) Should not be uniform and equitable3) Should be for public purpose

* basic limitations: for public purpose only inherently legislative government is exempt from taxation it is territorial (within its jurisdiction)

* constitutional limitations: due process equal protection non-impairment of contracts

d. Double taxationà There is double taxation when additional taxes are laid on the same subject by the same taxing jurisdiction during the same taxing period and for the same purpose.à Double taxation becomes obnoxious only where the taxpayer is taxed twice for the benefit of the same governmental entity.

e. Tax exemptions Constitution à Exemption is granted religious and charitable institutions because they give considerable assistance to the State in

the improvement of the morality of the people and the care of the indigent and the handicapped. Statutory (Congress) à Statutory exceptions are granted in the discretion of the legislature, but such law should be passed with the

concurrence of a majority of all the Members of Congress.

* Where the taxation is granted gratuitously, it may be validly revoked at will, with or without cause. However, if the exemption is granted for valuable consideration it is deemed to partake of the nature of a contract and the obligation thereof is protected against impairment.* By its very nature, the law that exempts one from tax must be clearly expressed because the exemption cannot be created by implication.

f. Distinguished from police powerà police power regulates both liberty and property; power of taxation only affects property rightsà the property taken in the exercise of the police power is destroyed because it is noxious or intended for noxious purpose; the property taken under the power of taxation is intended for a public use or purpose and is therefore wholesomeà the compensation of the person subjected to the police power is the intangible altruistic feeling that he has contributed to the general welfare; the compensation involved in the other powers is more concrete, to wit, a full and fair equivalent of the property expropriated or protection and public improvements for the taxes paid

à The power to tax is an incident of sovereignty and is unlimited in its range, acknowledging in its very nature no limits, so that security against its abuse is to be found only in the responsibility of the legislature which imposes the tax on the constituency that is to pay it. It is based on the principle that taxes are the lifeblood of the government, and their prompt and certain availability is an imperious need. Thus, the theory behind the exercise of the power to tax emanates from necessity; without taxes, government cannot fulfill its mandate of promoting the general welfare and well-being of the people.à On the other hand, police power is the power of the state to promote public welfare by restraining and regulating the use of liberty and property. It is the most pervasive, the least limitable, and the most demanding of the three fundamental powers of the State. The justification is found in the Latin maxims salus populi est suprema lex (the welfare of the people is the supreme law) and sic utere tuo ut alienum non laedas (so use your property as not to injure the property of others). As an inherent attribute of sovereignty which virtually extends to all public needs, police power grants a wide panoply of instruments through which the State, as parens patriae, gives effect to a host of its regulatory powers. We have held that the power to "regulate" means the power to protect, foster, promote, preserve, and control, with due regard for the interests, first and foremost, of the public, then of the utility and of its patrons.à The conservative and pivotal distinction between these two powers rests in the purpose for which the charge is made. If generation of revenue is the primary purpose and regulation is merely incidental, the imposition is a tax; but if regulation is the primary purpose, the fact that revenue is incidentally raised does not make the imposition a tax.(Gerochi vs. Department of Energy)

III. Bill of Rights

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- set of prescriptions setting forth the civil and political rights of the individual; guarantees the rights of the individuals- self-executory – it does not need to enact a law for the provisions in the Bill of Rights to take effect- provisions are only directed against the state; but invoke Art. 32 of the Civil Code and seek damages- violations of these rights à Art. 32 of the New Civil Code

A. Definition/Scope

1. Civil Rights – are those rights that belong to every citizen of the state or country, or, in a wider sense, to all its inhabitants, and are not connected with the organization or administration of government. They include the rights of property, marriage, equal protection of the laws, freedom of contract, etc. Or, as otherwise defined civil rights are rights appertaining to a person by virtue of his citizenship in a state or community. Such term may also refer, in its general sense, to rights capable of being enforced or redressed in a civil action.

2. Political Rights – are the right to participate, directly or indirectly, in the establishment or administration of government, the right of suffrage, the right to hold public office, the right of petition and, in general, the rights appurtenant to citizenship vis-a-vis the management of government.

B. Due Process of Law

1. Who are protected?- Bill of Rights are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, color, or nationality.- The word "person" found in the Fourteenth Amendment and in the first sentence of the first paragraph of the Philippine Bill of Rights includes aliens.- Private corporations are "persons" within the scope of the guaranties in so far as their property is concerned.

2. Meaning of life, liberty and property

“Article III, 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.”

a. Life – not necessarily mean that you are killed; it is the enjoyment of the complete use of the parts of your body; whatever makes life more meaningful and enjoyableb. Liberty – freedom dictated by law; to do what is right; you can do anything as long as it is not contrary to law, public order, public policy, morals and good customs; liberty of a person living in society and not in isolationc. Property – anything that is the subject of appropriation (buy and sell; includes services such as the practice of your profession) within the commerce of man

* Rights are not only the belonging of property to the person rather it comprises the title, ownership, use, enjoyment, disposal and destroying.

3. Aspects of due process- “due process of law” contemplates notice and opportunity to be heard before judgment is rendered, affecting one’s person or property

a. Substantive due process- the law itself must be fair, just and reasonable- in doing so you go back to the valid exercise of police power: lawful subject (promotion of public welfare) and lawful means (reasonable, definite, not oppressive)- if this is satisfied, then there is no violation to the substantive aspect

* elements/tests: There must be lawful/reasonable means There must be lawful/reasonable subject

* other 3 tests: Rational basis Strict scrutiny Immediate scrutiny

b. Procedural due process- enforcement and application of laws; pertains to the implementation of the law (fair, just and reasonable)- the heart of procedural due process is “the need for notice and an opportunity to be heard”; what is required is not actual hearing but the opportunity to be heard- is not always judicial due process, but also administrative proceedings, school proceedings, and extradition proceedings- judicial proceedings: criminal and non-criminal

* requirements of due process in a judicial process (not a criminal case):1) there must be a court tribunal clothed with judicial power to hear the and determine the matter before it;2) jurisdiction must be lawfully acquired over the person of the defendant or over property which is the subject of the proceedings;3) respondent must be given an opportunity to be heard;4) judgment must be rendered upon lawful hearing.

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* procedural due process helps achieve 2 purposes: (instrumentally) it contributes to accuracy and thus minimize errors in deprivations (more intrinsically) to the person who is the subject of deprivation, it gives him a sense of rational participation in a decision and

thus can affect his destiny and thus enhances his dignity as a thinking person

- fairness is not violated à in administrative proceedings when the hearing officer is not the same person who decides the case- the is violation of due process à when the officer who reviews a case is the same person whose decision is on appeal- notice and hearing à required in judicial and quasi-judicial proceedings; not prerequisites in the promulgation of general rules- fixing rates à being a quasi-judicial process, requires hearing

c. Due process in administrative proceedings- due process is not always judicial process- legal controversies have to be decided not by the courts but by administrative bodies- administrative bodies are not always bound by the finer points of judicial due process

* “cardinal primary” requirements in administrative proceedings: The right to a hearing, which includes the right to present one’s case and submit evidence in support thereof The tribunal must consider the evidence presented The decision must have something to support itself The evidence must me substantial

(substantial evidence – such reasonable evidence as a reasonable mind might accept as adequate to support a conclusion) decision must be based on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties

affected The tribunal body or any of its judges must act on its own independent consideration of the law and facts of the controversy, and

not simply accept the views of the subordinate 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(Ang Tibay vs. Court of Industrial Relations)

d. Due process in school proceedings- due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice

* minimum standards which must be met to satisfy the demands of procedural due process: The students must be informed in writing of the nature and cause of any accusation against them They shall have the right to answer against them, with the assistance of counsel, if desired They shall be informed of the evidence against them They shall have the right to adduce evidence in their own behalf The evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and

decide the case(Guzman vs. National University)

- a teacher in a school administrative proceeding has a right to be assisted by counsel

* instances when hearings are not necessary: 1. When administrative agencies are exercising their quasi-legislative functions;2. Abatement of nuisance per se;3. Granting by courts of provisional remedies;4. Preventive suspension;5. Removal of temporary employees in the government service;6. Issuance of warrants of distrait and/or levy by the BIR Commissioner;7. Cancellation of passport of a person charged with a crime;8. Issuance of sequestration orders9. Judicial order which prevents an accused from traveling abroad10. Suspension of bank’s operations by the Monetary Board upon a prima facie finding of liquidity problems in such bank.

Note:* right to appeal, generally, is not a part of due process; is not a natural or statutory right; however if it is granted by law, then appeal becomes part of due process* right to preliminary investigation is not a constitutional right but merely provided for by a statute

C. Equal Protection of the Lawsà Substantive equality is not enough. It is also required that the law be applied equally. Even if the law is fair and impartial on its face, it will still violate equal protection if it is administered “with an evil eye and an uneven hand,” so as to unjustly benefit some and prejudice others.à The clause “equal protection of the laws” does not preclude classification of individuals, who may be accorded different treatment under the law as long as the classification is not unreasonable or arbitrary.

* Classification has been defined as the grouping of persons or things similar to each other in certain particulars and different from each other in these same particulars. To be valid, it must conform to the following requirements:

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1) it must be based on substantial distinctions;2) it must be germane to the purposes of the law;3) it must not be limited to existing conditions only; and4) it must apply equally to all the members of the class.

(People vs. Cayat)

D. Arrest, Searches and Seizures

“Article III, 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 persons or things to be seized.”

* Arrest à taking of a person into custody in order that he may be bound to answer for the commission of an offense. (Sec. 1, Rule 113 of the Revised Rules of Court)* Search warrant à is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. (Sec. 1, Rule 126 of the Revised Rules of Court)* Warrant of Arrest à contemplated in Art. III, Sec. 2 of the Constitution refers to an arrest to bring the accused to answer in court.

General Rule: A search or a seizure is reasonable upon presentation of a valid warrant.Exceptions: 1. valid warrantless arrest; 2. valid warrantless searches

- The rule that “searches and seizures must be supported by a valid warrant” is not an absolute rule. What is prohibited is unreasonable searches and seizures.- 2 parts of search and seizure clause: a. prohibits “unreasonable searches and seizures”; b. requirements for a valid warrant

* Requisites for a valid warrant:

1. Probable causeà is defined as referring to such facts and circumstances antecedent to the issuance of the warrant that in themselves are sufficient to induce a cautious person to rely on them, and to act in pursuance thereof.à Probable cause for a search warrant --- 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 searchedà Probable cause for a warrant of arrest --- 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.à The purpose of each proceeding differs from the other. The first is to determine whether a warrant should issue or be quashed, and the second, whether an information should be filed in court.

* What facts and circumstances should we look into in the case of prosecutors? Of judges? For Prosecutor à it is whether to hold the person liable for the charge and to hold a court trial. For the Judge à but if it is probable cause as determined by the judge for the issuance of warrant of arrest, it is whether there are facts and

circumstances sufficient to warrant that there is a need to place the accused into custody.2. Determination by a judge

à Only judges are vested with authority to issue warrants for the arrest of persons, including aliens.à It means exclusive, independent and personal satisfaction that a probable cause exists.à The key to the personal determination is the personal satisfaction of the judge that a probable cause exists sufficient to issue a warrant of arrest.- complaint affidavit à subpoena à counter-affidavit à resolution (to file information; or not) ----- Executive Function

- there is probable cause - there is no probable causeà court (issue warrant of arrest; or not) ----- Judicial Function

- there is PC - there is no probable cause

3. Personal examinationà Determination must be made only “after examination under oath or affirmation of the complainant and the witnesses he may produce” and the warrant must contain the required particularity of description.à Oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause. (Alvarez vs. Court of First Instance)à Judge is not required to personally examine the complainant and his witnesses or to await the submission of counter affidavits from an accused. (Soliven vs. Makasiar)à Witnesses must have personal knowledge of the facts and circumstances. What is meant by probable cause is the facts and circumstances sufficient to warrant a reasonable belief, it can only be facts and circumstances sufficient to warrant a reasonable belief if it is based on personal knowledge not based on hearsay, that is precisely why the reason that it is placed in the Constitution complainant and witnesses, because it can happen that the complainant could not have personal knowledge of how the crime was committed in which case, he must have to bring in witnesses because you only establish probable cause by the presentation of evidence based on personal knowledge.

à The following established doctrine and procedure, the judge shall: Personally evaluate the report and the supporting documents submitted by the prosecutor regarding the existence of probable cause, and on

the basis thereof, he may already make a personal determination of the existence of probable; and If he is not satisfied that probable cause exists, he may disregard the prosecutor’s report and require the submission of supporting affidavits of

witnesses to aid him in arriving at a conclusion as to the existence of probable cause (Soliven vs. Makasiar)

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a. Search Warrant – The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. (Sec. 5, Rule 126 of the Revised Rules o Court); disregard the prosecutor’s findings.

b. Warrant of arrest – There is personal determination if the judge has personally evaluated the supporting documents or affidavits and is personally satisfied that probable cause exists.

4. Particularity of descriptionà A search warrant should particularly describe the place to be searched and the things to be seized. The evident purpose and intent of this requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant — to leave the officers of the law with no discretion regarding what articles they shall seize, to the end that “unreasonable searches and seizures” may not be made, — that abuses may not be committed.

à One of the tests to determine the particularity in the description of objects to be seized under a search warrant is when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. (Bache and Co. vs. Ruiz)

à Description of Place --- The rule is that a description of the place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended to be searched.

à Description of Items to be seized --- While it is true that the property to be seized under a warrant must be particularly described therein and no other property can be taken thereunder, yet the description is required to be specific only in so far as the circumstances will ordinarily allow.

à Prohibition: General warrants – a warrant that does not particularly describe the person to be sought or the things to be ceased Scattered shot warrants – a warrant which allows officers to search a particular place with different offenses

* John Doe warrant – The warrant for apprehension of an unnamed party is void, “except in those cases where it contains a descriptio personae such as will enable the officer to identify the accused”. The description must be sufficient to indicate clearly the proper person upon whom the warrant is to be served. (People vs. Veloso)

à Tests: A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will

ordinarily allow; or when the description expresses a conclusion of fact — not of 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.

à These 3 must be present: Given Name Assumed appellation (John Doe; Richard Joe; Jane Doe) Description personae

à What is material in determining the validity of a search is the place stated in the warrant itself, not what the applicants had in their thought, or had represented in the proofs they submitted to the court issuing the warrant.

* Allowable warrantless searches:

1. Warrantless search incidental to a lawful arrest- An officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or was the fruit of the crime 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 cause. (both to protect the arresting officer against any physical harm and to prevent the person arrested from destroying evidence within his reach)- In this instance, the law requires that there first be a lawful arrest before a search can be made the process cannot be reversed.

- Permissible area of search: only the area within which the person arrested(1) could reach for weapon;(2) reach for evidence to destroy it.

- Elements:1) The arrest must precede the search, or the arrest must be contemporaneous with the search;2) The item to be seized must be within the person’s custody or within his control.

- Arrest without warrant; when lawful: (Rule 113, Section 5, Revised Rules of Criminal Procedure) flagrante delicto – When, in his presence, person to be arrested has committed, is actually committing, or is attempting to commit an offense. hot pursuit – When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts and circumstances

that the person to be arrested has committed it. escaped – When a person to be arrested is a prisoner who escaped from a penal establishment, or place he is serving final judgment, or is temporary

confined while his case is pending, or has escaped while being transferred from one confinement to another.

2. Seizure of evidence in plain view

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- The objects “falling in the plain view of an officer who has the right to be in the position to have that view are subject to seizure and may be introduced in evidence”.- The discovery must be “inadvertent” (unintentional).- Seizure of a malum prohibitum requires a warrant unless it is truly stumbles upon.

- Elements:1) a prior valid intrusion based on the valid warrantless arrest in which the police officers are legally present in the pursuit of their official duties;2) the evidence was inadvertently discovered by the police who had the right to be where they are (no need for further search);3) the evidence must be immediately apparent; and4) “plain view” justified mere seizure of evidence without further search

- The ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.(People vs. Musa)

3. Search of vessels and aircraft

- Search and seizure without search warrant of vessels and air crafts for violations of the customs laws have been the traditional exception to the constitutional requirement of a search warrant, because the vessel can be quickly moved out of the locality or jurisdiction in which the search warrant must be sought before such warrant could be secured; hence it is not practicable to require a search warrant before such search or seizure can be constitutionally effected.

4. Search of a moving vehicle

- It is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.- Travelers may be … stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.- An extensive search without warrant could only be resorted to if the officers conducting the search had reasonable or probable cause to believe before the search that either the motorist was a law offender or that they would find the instrumentality or evidence pertaining to the commission of a crime in the vehicle to be searched. (Valmonte vs. De Villa)- One such form of search of moving vehicles is the “stop-and-search” without warrant at military or police checkpoints which has been declared to be not illegal per se, for as long as it is warranted by the exigencies of public order and conducted in a way at least intrusive to motorists. A checkpoint may either be a routine inspection or it may involve an extensive search. (Caballes vs. Court of Appeals)

- The search which is permissible in routine inspections is limited to the following instances:1) Where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds;2) Simply looks into the vehicle;3) Flashes a light therein without opening the car’s doors;4) Where the occupants are not subjected to a physical or body search;5) Where the inspection of the vehicles is limited to a visual search or visual inspection;6) Where the routine check is conducted in a fixed area.

(Caballes vs. Court of Appeals)

5. Customs search

- Custom officers or border officers may search incoming persons and goods to look for either goods concealed to avoid duties or other illegal materials.- When is it possible? It is governed by Tariff and Customs Code.

6. Stop and frisk

- While probable cause is not required to conduct a ‘stop and frisk’, it nevertheless holds that mere suspicion or a hunch will not validate a ‘stop and frisk’. A genuine reason must exist, in the light of the officer’s experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. (Malacat vs. Court of Appeals)- Prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person "may be armed and presently dangerous. For their own protection, police may perform a quick surface search of the person’s outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. This reasonable suspicion must be based on "specific and articulable facts" and not merely upon an officer's hunch. This permitted police action has subsequently been referred to in short as a "stop and frisk," or simply a "Terry stop". (Terry vs. Ohio)

- 2-fold- interest:1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate

circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he

deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer(Malacat vs. Court of Appeals)

- The essential requisite of probable cause must still be satisfied before a warrantless search and seizure can lawfully be conducted. Probable cause, in these cases, must only be based on a reasonable ground of suspicion or belief that a crime has been committed or is about to be committed. It is, however, decided not by a judge but by the searching officer.

7. Exigent and emergency circumstances

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- Common Denominator: Because there is no warrant, the search is limited so as not to further harass.

- As there was general chaos and disorder at that time … [that] the courts in the surrounding areas were obviously closed and, for that matter, the building and houses therein were deserted … [and that] the military operatives … had reasonable ground to believe that a crime was being committed, the case falls under one of the exceptions to the prohibition against a warrantless search. (People vs. de Gracia)

8. Searches of passenger at airports

- Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern over airplane hijacking and terrorism has come increased security at the nation’s airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggages as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified through airport public address systems, signs, and notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures. (People vs. Johnson cited in People vs. Susan Canton)

9. Waiver

- Waiver can be shown by failure to make any objection or even mutter a bit of protest.- Waiver must be understood to cover only what is included within the terms of the language.

- To constitute a waiver of a constitutional right, it must appear that (requisites):1) The right exists; (existence of the right)2) The person involved had knowledge, either actual or constructive, of the existence of such right; (knowledge of the right)3) That said person had an actual intention to relinquish the right. (intent to relinquish the right)

(People vs. Barros); (Lui vs. Matillano); (People vs. Asis)

- Waiver can be made by: (People vs. Damaso)1) By the person whose rights are violated;2) By the person who is authorized to do so in his behalf.

- Instances when there is no valid waiver: People vs. Barros: When there was a demonstration of regard of supremacy of law. Lui vs. Matillano: When one’s conformity was given under fear.

* Allowable warrantless arrest:

* Arrest – is the taking of a person into custody in order that he may be forthcoming to answer for the commission of an offense.

- Probable cause for an arrest without warrant is such a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves as to warrant a reasonable man believing the accused to be guilty.- Any objection involving a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of the accused must be made before he enters his plea (quashing of info against him before arraignment), otherwise the objection is deemed waived.- Section 26, Rule 114 of the Revised Rules of Procedure: An application for bail or the admission to bail by an accused is not considered a waiver of his right to assail the warrant issued for his arrest of the legalities or irregularities thereof.

* Arrest without warrant; when lawful: (Rule 113, Section 5, Revised Rules of Criminal Procedure)

In flagrante delicto

* 2 requisites/elements:1) The person to be arrested must exercise an overt act indicating that he has just committed, is actually committing, or is attempting to commit a

crime;2) Such overt act is done in presence or within the view of the arresting officer. (People vs. Molina)

* “presence” – not only limited to physical presence but also to hearing

- An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene thereof. (People vs. Sucro)

Hot pursuit or entrapment operation

* 2 requisites/elements:1) When an offense has just been committed; and2) He has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it.

- It is not necessary that the arresting officers have direct knowledge of the crime. But they must have direct knowledge or view of the crime right after its commission.

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- It is not sufficient that a crime was indeed committed but it is required that the said crime has just been committed. The proximity of time of commission of the crime must be close to the time of the arrest. Otherwise, the arrest is illegal.

Escaped prisoner

* 2 requisites/elements:1) When a person to be arrested is a prisoner who escaped from a penal establishment; or2) Place he is serving final judgment; or is3) Temporary confined while his case is pending; or4) Has escaped while being transferred from one confinement to another.

* Exclusionary Ruleà Pieces of evidence seized in violation of Section 2 are inadmissible in any court proceeding (criminal, civil, admin) for they are fruits of a poisonous tree.à It bars admission of illegally obtained evidence.à “As we understand it, the reason for the exclusion of evidence competent as such, which has been unlawfully acquired, is that exclusion is the only practical way of enforcing the constitutional privilege. In earlier times the action of trespass against the offending official may have been protection enough; but that is true no longer. Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong will that wrong be repressed.” (Stonehill vs. Diokno)à The legality of a seizure can be contested only by the party whose rights have been impaired thereby, and that the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties.à The inadmissibility of evidences, however, does not means that it must be returned where it came from. If the object is lawful, it must be returned. But if contraband, it can be confiscated or destroyed.à To come under the exclusionary rule, however the evidence must be obtained by government agents and not by private individuals acting on their own. E. Privacy of Communication and Correspondence

“Article III, 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 proceeding.”

- It covers privacy relating to “intangibles”, and also “intangibles”. It refers to any means or forms of communication.- Examples: Telephone conversation, letters, text messages, emails- Nobody can just open your letters including electronic communication, or listen to your conversation, or record your conversation without your consent.- It would be unreasonable to require the description of the contents of the communication. But the identity of the person or persons whose communication is to be intercepted, and the identity of the offense or offenses sought to be prevented, and the period of the authorization given can be specified.

* 2 limitations for the right to privacy of communication:1) Lawful order of the court

- while the text does not give any ground , probable cause must be determined- it is judicial

2) When public safety or order requires otherwise as prescribed by law - it would be based upon a government official’s assessment that public safety and order demands such intrusion- this discretion of the of the public officer must be exercised as prescribed by law- is it non-judicial

- RA No. 4200 (Anti Wire-Tapping Law) à You cannot record telephone cords.à Exception: extension lines. Tapping in the main line is what is prohibited. Even if it will establish the truth, this cannot be used as evidence. But if you record it in an extension line, it may be admissible.- does not consider it unlawful to record open and public communications- what it protects are private conversations and communications. Specifically, it is considered unlawful: (1) secretly overhear; (2) intercept; or (3) record private communication or spoken word when doing so is without authority of all the parties to such private communication.

- Publication by transcribing the communication à If somebody is harassing you in your telephone, you cannot ask the telephone communication company to bug your phone. What you should do is to apply a warrant in court and establish probable cause and the requirement of particularity: content of communication. You can only make estimation for the conversation or communication to be bugged.- Human Security Act (Anti-Terrorism act) à It refers to terrorism or terrorist activities only. There is no implementing rule up to what extent the terrorism communication is defined.

Q: When intrusion is made without a judicial order, how is the matter to be approached?A: It would have to be based upon a non-judicial government official’s assessment that public safety and order demands such intrusion.* “public order and safety” à the security of human lives, liberty and property against the activities of invaders, insurrectionists and rebels

(Zulueta vs. Court of Appeals)- Wife was suspecting that the husband have an affair. So wife ransacked the table of husband and found all the love letters and used evidence against the husband.- Not admissible against the husband but can be used against the wife for the violation of privacy.

(Ramirez vs. Court of Appeals)- Wife recorded the quarrel. She went to the court and accused the other for libel making derogatory remarks.- Not admissible because taken without the consent of the other party.(Waterous Drug Corp. vs. NLRC) & People vs. Marti (just base on these cases)

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- Employee of company had a part time job which is the competitor of the company. He was receiving commissions from other company which was sent to him by mail. Received by the clerk in the present company. Clerk believing it was for the company, opened the letter. So they found the check. The company dismissed him.- Can the letter be admissible as evidence? SC said the opening of letter was not deliberate to intrude in the privacy. It was part of the work of the clerk thus admissible to evidence. He was dismissed.

(In the matter of petition for habeas corpus of Capt. G. Alejano, et al. vs. Cabuay)- If the letters are marked confidential communication between the detainees and their lawyers, the detention officials should not read the letters but only open the envelopes for inspection in the presence of the detainees. That a law is required before an executive officer could intrude on a citizen’s privacy rights is a guarantee that is available only to the public at large but not to persons who are detained or imprisoned. The right to privacy of those detained is subject to Section 4 of RA 7438, as well as to the limitations inherent in lawful detention or imprisonment. By the very fact of their detention, pre-trial detainees and convicted prisoners have a diminished expectation of privacy rights.

(Trillanes case)- Letters were passed through the attorney. Military reads letter before passing the letter. They questioned the acts of the military for opening the letter. SC said, if you are prisoner, you don’t enjoy as much privacy with the public at large. This is for public safety and security

- Letters of Prisoners à routine inspection of jail warden and found under the pillow is a letter. Letter is seized by the jail warden and given to the fiscal. Can the letter be used as evidence against the accused? Yes, because he does not enjoy the same privacy (routine investigation)

- Attorneys are mere couriers. Letters are not lawyer-client conversation. Unless he writes on the envelope that this is personal and confidential. It can be opened but cannot be read.- Only exception: Lawful order of the court. (Without the order, you cannot intrude. Even in emails.)

Q: Can a private courier open your letter?A: No, privacy should still prevail. Thus information obtained should not be used or admissible in evidence.

F. Freedom of Expression, Assembly and Petition

“Article III, Section 4. 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.”

- 2-fold purpose: (reasons why Freedom of expression is enshrined in the Constitution) Free expression is needed for democracy to work properly. Freedom of expression promotes individual self-realization and self-determination.

* Freedom of expression is the foundation of a free, open and democratic society. Freedom of expression is an indispensable condition to the exercise of almost all other civil and political rights. No society can remain free, open and democratic without freedom of expression. Freedom of expression guarantees full, spirited, and even contentious discussion of all social, economic and political issues. To survive, a free and democratic society must zealously safeguard freedom of expression. (Chavez vs. Sec. Gonzales)

* Freedom of speech and press means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any matter of public consequence. The right belongs as well- if not more- to those who question, who do not conform, and who differ.

* The ideas that may be expressed under this freedom are confined not only to those that are conventional or acceptable to the majority.

* To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us.

1. Scope

- Rights protected: Speech Press Assembly Petition of redress of grievances

- What is protected: freedom to utter freedom to publish freedom from punishment subsequent to publication

- All forms of media, whether print or broadcast, are entitled to the broad protection of the clause on freedom of speech and expression.- It occupies a higher level or of primary position in the hierarchy of rights than substantive economic freedoms or other liberties.(basic human right à universal right)- Note: Even if it’s absent in the Constitution, it can still be invoked bec. it’s protected by customary international laws w/c are deemed binding in our domestic laws.

* Dichotomy between print and broadcast media- While all forms of communication are entitled to the broad protection of freedom of expression or clause, the freedom of film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other print media.- According to U.S. Courts, the three major reasons why broadcast media stands apart from print media are: (Chavez vs. Sec. Gonzales)

The scarcity of the frequency by which the medium operates [that is airwaves are physically limited while print medium is limitless]; Its “pervasiveness” as a medium; and Its accessibility to children.

2. Aspects

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General rule: The expression is not subject to any prior restraint or censorship because the Constitution commands that freedom of expression shall not be abridged. Exceptions: (when expression may be subject to prior restraint) (Chavez vs. Sec. Gonzales)

pornography, false or misleading advertisement, advocacy of imminent lawless action, and danger to national security

a. Freedom from censorship or prior restraint- freedom from official governmental restriction on the press prior actual publication and dissemination (absolute)- forms/examples:

system of licensing movie censorship forms of judicial injunction imposition of license taxes

- evil sought to be prevented: government to become the guardian of the thoughts of the people- blatant form of censorship: taxes à “The fees are imposed not on income but on the fact that they are able to distribute. If they do not pay, they cannot distribute. That is asking permission in advance of publication but it is different if it’s a tax on income.”

* prior restraint – official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination

* Only unprotected expression may be subject to prior restraint. However, any such prior restraint on unprotected expression must hurdle a high barrier. First, such prior restraint is presumed unconstitutional. Second, the government bears a heavy burden of proving the constitutionality of the prior restraint. (Chavez vs. Sec. Gonzales)

* Movie Censorship- This freedom includes the freedom to film and produce motion pictures and to exhibit such motion pictures in theaters or to diffuse them through television.- The public authorities may bring the owner or publisher of a newspaper.- The power of MTRCB can be exercised only for purposes of classification, not censorship.

* The interest sought to be protected by the right of privacy: free from unwarranted publicity; free from the wrongful publicizing of the private activities of an individual which are outside the realm of legitimate public concern

* 3 reasons why public figures were held to have lost, to some extent at least, their right of privacy: they had sought publicity and consented to it, and so could not complain when they received it; their personalities and their affairs had already become public, and could no longer be regarded as their own private business; the press had a privilege, under the Constitution, to inform the public about those who have become legitimate matters of public interest

b. Freedom from subsequent punishment- because if there is no freedom from subsequent punishment then you defeat the very purpose of freedom of prior restraint; people would hesitate to speak what is on their thoughts- without this assurance, the individual would hesitate to speak for fear that he might be held to account for his speech, or that he might be provoking the vengeance of the officials he may have criticized- general rule: no liability after speech; exception: when public welfare demands- the tests applicable to prior restraint - this freedom is not absolute; the State may validly impose sanctions over forms of unprotected speech à a) libel; b) obscenity

* However, the mere prohibition of government interference before words are spoken or published would be inadequate protection of the freedom of expression if the government could punish without restraint after publication.* Thus, the guarantee of freedom of expression also means a limitation on the power of the state to impose subsequent punishment.* It is enough to determine whether the challenged act constitutes some form of restraint of freedom of speech. A distinction has to be made whether the restraint is content-neutral or content-based.

3. Content-based and content-neutral regulations (under prior restraint)

* Content-based: (Chavez vs. Sec. Gonzales)a) Content-based restraint or censorship, i.e. the restriction is based on the subject matter of the utterance of speech.b) Prior restraint on expression is content-based if the restraint is aimed at the message or idea of the expression.c) Courts will subject to strict scrutiny content-based restraint.d) There is restraint or censorship.e) Directed merely on the speech.f) Need to overcome the clear and present danger rule.

- With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained would bring about – especially the gravity and the imminence of the threatened harm- otherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, “but only by showing a substantive and imminent evil that has taken the life of a reality on ground.”* Content-neutral: (Chavez vs. Sec. Gonzales)

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a) Content-neutral regulation is one concerned with the incidents of speech, or one that merely controls the time, place or manner, and under well-defined standards.

b) If the prior restraint is not aimed at the message or idea of the expression, it is content-neutral even if it burdens expression. A content-neutral restraint is a restraint which regulates the time, place or manner of the expression in public places without any restraint on the content of the expression.

c) Courts will subject to intermediate scrutiny/intermediate review.d) There should be no prior restraint on the content of the expression itself.e) Directed merely on the time, place or manner of expression of speech.f) Only a substantial governmental interest is required for its validity (O’Brien Test)

* A government regulation is sufficiently justified if: (O’Brien Test) (Osmena vs. COMELEC) it is within the constitutional power of the Government; it furthers an important or substantial governmental interest; the governmental interest is unrelated to the suppression of free expression; and the incident restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

The SC ruled:“Criticism is permitted to penetrate even to the foundations of Government. Criticism, no matter how severe, on the Executive, the Legislature, and the Judiciary, is within the range of liberty of speech, unless the intention and effect be seditious. But when the intention and effect of the act is seditious, the constitutional guaranties of freedom of press and speech and of assembly and petition must yield to punitive measures designed to maintain the prestige of constituted authority, the supremacy of the constitution and the laws, and the existence of the State.”

4. Test of valid governmental interference- Generally, restraints on freedom of speech and expression are evaluated by either or a combination of 3 tests.

a. Clear and present danger rule- A standard which serves to emphasize the importance of speech to a free society without sacrificing other freedoms essential to a democracy.- It rests on the premise that speech may be restrained because there is substantial danger that will likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences sought to be prevented must be substantive, “extremely serious and the degree of imminence extremely high.” It is a question of proximity and degree.- You’ve got to show the presence of real danger as opposed to just a tendency of creating some danger; and it has to be real and imminent as opposed to just creating or showing to the court that there’s a tendency of danger. So here, the court is more stringent.- The evil consequence of the comment or utterance must be extremely serious and the degree of imminence extremely high before the utterance can be punished.

b. Dangerous tendency rule- What we need to establish for the restriction to be valid is that the words of the expression made has a dangerous tendency to create disorder. Some the tendency of it creating danger is sufficient for you to impose restriction.- Speech may be curtailed or punished when it “creates a dangerous tendency which the State has a right to prevent.”- All it requires, for speech to be punishable, is that there be a rational connection between the speech and the evil apprehended.- It pertains to limitation on speech once a rational connection has been established restrained and the danger contemplated.- The constitutionality of a statute curtailing speech is determined in the same manner that the constitutionality of any statute is determined, namely, by answering the question whether a statute is “reasonable”.- If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable; it is sufficient that such acts be advocated in general terms; it is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent.

c. Balancing of interest test- It is used as a standard when courts need to balance conflicting and social values and individual interests, and requires a conscious and detailed consideration of the interplay of interest observable in a given situation or type of situation.- The judiciary balances the interest of the public and the person who is uttering.

- These tests apply not only to freedom of speech and press, but also to other preferred freedoms: freedom of association, right of assembly and petition, freedom of religion.

5. Unprotected speech

Libel – is public and malicious imputation of a crime, or a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, credit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. (Art. 353 of RPC)

* Requisites: (Ledesma vs. Court of Appeals) must be defamatory; must be malicious; must be given publicity; victim must be identifiable

*Exceptions of Libel :

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absolutely qualified communications – statement made in official proceedings of the legislature by the members thereof qualified privileged communications

o a private communication made by any person to another in the performance of any legal, moral, or social duty;o a fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings

which are not of confidential nature, or of any statement, report of speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions

* General rule: Every Defamatory Imputation (Libel) is presumed to be malicious.

* Exceptions à The presumption of malice does not exist in the following circumstances: (Flor vs. People) a private communication made by any person to another in the performance of any legal, moral, or social duty; a fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are

not of confidential nature, or of any statement, report of speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions

Obscenity – something offensive to chastity, decency, or delicacy.

* Tests of Obscenity : (People vs. Kottinger) whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and

into whose hands a publication or other article charged as being obscene may fall whether it shocks the ordinary and common sense of men as indecency

* “Latest” word or Obscenity (basic guidelines): (Miller v. California) à p r e f e r r e d t e s t ! whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

* In contempt of court by publication:- The freedom of the press to express in good faith legal opinions on legal questions pending before the Courts guaranteed by the Constitution. “So long as it is done in good faith, newspapers have the legal right to have and express opinions on legal questions. To deny them that right would infringe upon the freedom of the press.

- Statements made in the course of judicial proceedings are absolutely privileged – that is, privileged regardless of the defamatory tenor and of the presence of malice -- if the same are relevant, pertinent or material to the cause in hand or subject of the inquiry.

6. Assembly and Petition- These rights are not absolute; sometimes conflict with laws intended to protect public safety and order.- Political rallies, conventions, opposition, marches, and freedom parades – these are examples of what we usually see in our public streets and thoroughfares. - Going through the pages of the history of contemporary Philippines, the exercise by the people of the right of assembly and petition has played a significant role in reshaping our democratic landscape.- However the freedom of assembly in order to protest sometimes conflicts with laws intended to protect public safety, even in democratic countries.

* What does this right, enshrined in the Constitution guarantee?à Nature of right: peaceful assembly / the right to peaceably assemble

* Limitation:à An assembly which orbits out of non-violence and order is not the one intended by the Constitution. Once violence, hostility or crimes characterized the assemblage, the protection of the Constitution cannot be availed.

B.P. No. 880:“An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The Government [And] For Other Purposes”

"Public assembly" à means any rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place for the purpose of presenting a lawful cause; or expressing an opinion to the general public on any particular issue; or protesting or influencing any state of affairs whether political, economic or social; or petitioning the government for redress of grievances.à The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes shall be governed by local ordinances: Provided, however, That the declaration of policy as provided in Section 2 of this Act shall be faithfully observed.à The definition herein contained shall not include picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227.

"Public place" à shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza, square, and/or any open space of public ownership where the people are allowed access.

"Maximum tolerance" à means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same.

"Modification of permit" à shall include the change of the place and time of the public assembly, rerouting of the parade or street march, the volume of loud-speakers or sound system and similar changes.

* The right to assemble is not subject to previous restraint or censorship. But the exercise of these freedoms may be subject to certain limitation and may thus be regulated by law. The laws that we have is intended to regulate the manner of how the right to assembly is exercised, not the right to assembly itself.

* He may be allowed to deny or modify the application on ground specified by law namely:

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first, when there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health, and

second, the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit.

G. Freedom of Religion

“Article III, Section 5. No law shall be made respecting an establishment or religion, or prohibiting the 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 and political rights.”

* religion – theistic (Phil. Jurisprudence); profession of faith to an active power that binds and elevates mans to his Creator (Aglipay vs. Ruiz)

1. Non-establishment clause (separation of Church and State)- Neither a State nor the Federal Government can set up a church. Neither it can pass laws which aid one religion, aid all religions, or prefer religion over another. Neither can openly or secretly participate in the affairs of any religious organizations or groups and vice versa.

Constitutional provisions on non-establishment: Article II, Section 6: on separation of Church and State Article IX, Section 2(5): on a religious sect that cannot be registered as a political party. Article IX, Section 5(2): non-sectoral representative from the religious sector Article IX, Section 29(2): prohibition against the use of public money or property for the benefit of religion, or any priest or minister, etc.

Exceptions: Article VI, Section 28(3): exemption from taxation of properties actually, directly or exclusively used for religious purpose. Article XIV, Section 4(2): citizenship requirement of ownership of educational institutions. Article XIV, Section 3(3): optional religious construction in public elementary and high schools Article VI, Section 29(2): appropriation allowed where the minister or ecclesiastic is employed in the armed forces, in penal institutions, or in government

orphanage or leprosarium.

* Non-establishment calls for is government neutrality in religious matters; 4 general propositions:a) Government must not prefer one religion over another or religion over irreligion because preference would violate voluntarism and breed dissension;b) Government funds must not be applied to religious purposes because this would too violate voluntarism and breed interfaith dissension;c) Government action must not aid religion because this too can violate voluntarism and breed interfaith dissension;d) Government action must not result in excessive entanglement with religion because this too can violate voluntarism and breed interfaith dissension.

2. Free exercise clause (freedom of religious profession and worship)- Freedom of choice guarantees the liberty of the religious conscience and prohibits any degree of compulsion or burden, whether direct or indirect, in the practice of one’s religion.

- This aspect embraces two concepts:à FREEDOM TO BELIEVE and FREEDOM TO ACT – While the first is absolute; the second cannot be absolute (subject to governmental regulations).- The absoluteness of the freedom to believe carries with it the corollary that the government, while it may look into the good faith of a person, it cannot inquire into a person’s religious pretensions.- The moment, however, belief flows over into action, it becomes subject to government regulation.

* 2 main standards used by the Court in deciding religion clause cases (standards of separation): (Estrada vs. Escritor)1) separation (in the form of strict separation or the tamer version of strict neutrality or separation)

- strict or tame - protects the principle of church-state separation with a rigid reading of the principle strict separation (strict separationist view/strict) – believes that the Establishment Clause was meant to protect the state from the church, and the

state’s hostility towards religion allows no interaction between the two; “wall of separation” to protect the state from the church strict neutrality (separationist view/tame) – is not hostile to religion, but it is strict in holding that religion may not be used as a basis for

classification for purposes of governmental action, whether the action confers rights or privileges or imposes duties or obligations; largely used by the Court, showing the Court’s tendency to press relentlessly towards a more secular society

2) benevolent neutrality or accommodation- protects religious realities, tradition and established practice with a flexible reading of the principle- this theory believes that with respect to governmental actions, accommodation of religion may be allowed, not to promote the government’s favored form of religion but to allow individuals and groups to exercise their religion without hindrance

* “Lemon test” requires a challenged policy to meet the following criteria to pass scrutiny under the Establishment Clause: (Estrada vs. Escritor) first, the statute must have a secular legislative purpose; second, its primary or principal effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive entanglement with religion.’

* Compelling State Interest Test: (Estrada vs. Escritor) whether respondent’s right to religious freedom has been burdened to ascertain respondent’s sincerity in his/her religious belief whether the state in achieving its legitimate purpose has 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 StateH. Liberty of Abode and of Travel

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“Article III, 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, public health, as may be provided by law.”

* Liberties guaranteed: liberty of abode liberty to travel

* Limitations: upon lawful order of the court à liberty of abode upon interest of national security, public safety, public health and as may be provided by law à liberty to travel

à upon lawful order of the court may also be applied to the 2nd liberty

- There was a splitting of the two guarantees and treating them differently.- The liberty of abode can be impaired “upon lawful order of the court” and the court is guided by “the limits prescribed by law” on the liberty itself.- The liberty to travel can be impaired without court order, but the appropriate executive officer is not armed with arbitrary discretion to impose limitations. He can impose limits only on the basis of “national security, public safety or public health” and “as may be provided by law.”

(Silverio and Santiago case): Sec. 6 of Art. III should be no means be construed delimiting the inherent powers of the Court to use all means necessary to carry their order with respect in criminal cases pending before them.

* some of the statutory limitations: The Human Security of 2010 The Philippine Passport Act of 1996 The Anti-Trafficking in Persons Act of 2003 The Migrant Workers and Overseas Filipinos Act of 1995 The Act on Violence against Women and Children Inter-Country Adoption Act of 1995

I. Right to Information

“Article III, Section 7. 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.”

- addition of the phrase “well as to government research data used as basis for policy development” - “government research data” à findings of the gov’t. funded research and not to the findings of privately funded research over which proprietary rights might exist- courts will determine whether an information is of public concern or public interestQ: Is the provision self-executory?A: This constitutional provision is self-executory and supplies “the rules by means of which the right to information may be enjoyed by guaranteeing the right and mandating the duty to afford access to sources of information. Hence, the fundamental right therein recognized may be asserted by the people upon the ratification of the constitution without need for any ancillary act of the Legislature.

Q: What is the role of Legislature?A: What may be provided for by the Legislature are reasonable conditions and limitations upon the access to be afforded which must, of necessity, be consistent with the declared State Policy of full public disclosure of all transactions involving public interest.

Q: What are the rights guaranteed?A: While there are two aspects, note, however, that there is really one general right and that is the right to information on matters of public concern. The right to access to official records is given as an implementation of the right to information.

* Art. II, Sec. 28 à "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."

* Scope: - right does not include the finding of privately funded research over which private proprietary rights might exist

* Purpose: transparency essential in the exercise of expression accountability

* 3 categories: official records – refers to any document that is part of the public records in the custody of government agencies or officials documents and papers pertaining to official acts, transactions, or decisions – refers to documents and papers recording, evidencing, establishing,

confirming, supporting, justifying or explaining official acts, transactions, or decisions of government agencies or officials government research data used as basis for policy development – refers to research data, whether raw, collated or processed, owned by the government

and used in formulating government policies- “regulatory discretion”: (both)

authority to determine what matters are of public concern

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authority to determine the manner of access to them

* Limitations on the right to information: (Chavez vs. PCGG) national security matters – military, diplomatic, others

- At the very least, this jurisdiction recognizes the common law holding that there is a governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters.- Likewise, information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest.

trade secrets and banking transactions – as provided by the Intellectual Property Code- The drafters of the Constitution also unequivocally affirmed that, aside from national security matters and intelligence information, trade or industrial secrets as well as banking transactions are also exempted from compulsory disclosure.

criminal matters – those relating to the apprehension, the prosecution and detention of criminals- Also excluded are classified law enforcement matters, such as those relating to the apprehension, the prosecution and the detention of criminals, which courts may not inquire into prior to such arrest, detention and prosecution. Efforts at effective law enforcement would be seriously jeopardized by free public access, for example, police information regarding rescue operations, the whereabouts of fugitives, or leads on covert criminal activities.

other confidential matters – Ethical Standards Act- The Ethical Standards Act further prohibits public officials and employees from using or divulging “confidential or classified information officially known to them by reason of their office and not made available to the public.”- Other acknowledged limitations to information access include diplomatic correspondence, closed door Cabinet meetings and executive sessions of either house of Congress, as well as the internal deliberations of the Supreme Court.

* 3 things to be considered/tenets: Matters of public concern à In determining whether or not a particular information is of public concern, there is no rigid test which can be applied. “Public

concern” like “public interest” is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public.

Not exempted by law on the guarantees à Pertains to recognized restrictions/limitations. (cited above) While access to official records may be prohibited, but it may be regulated à It is clear from the foregoing pronouncements of this Court that government

agencies are without discretion in refusing disclosure of, or access to, information of public concern. This is not to lose sight of the reasonable regulations which may be imposed by said agencies in custody of public records on the manner in which the right to information may be exercised by the public.

* Chavez vs. PEA and Amari case ruling: Information, however, on on-going evaluation or review of bids or proposals being undertaken by the bidding or review committee is not immediately

accessible under the right to information. While the evaluation or review is still on-going, there are no "official acts, transactions, or decisions" on the bids or proposals. However, once the committee makes its official recommendation, there arises a "definite proposition" on the part of the government. From this moment, the public's right to information attaches, and any citizen can access all the non-proprietary information leading to such definite proposition.

The right to information "contemplates inclusion of negotiations leading to the consummation of the transaction." Certainly, a consummated contract is not a requirement for the exercise of the right to information.

The right to information, however, does not extend to matters recognized as privileged information under the separation of powers. The right does not also apply to information on military and diplomatic secrets, information affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused, which courts have long recognized as confidential. The right may also be subject to other limitations that Congress may impose by law.

To sum it up: The constitutional right to information includes official information on on-going negotiations before a final contract. The information, however, must constitute definite propositions by the government and should not cover recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national security and public order.40 Congress has also prescribed other limitations on the right to information in several legislations.

J. Right to Association

“Article III, 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.”

- It guarantees the right to form associations. It does not include the right to compel others to form an association. But there may be situations in which, by entering into a contract, one may also be agreeing to join an association.- Exceptions:

If such is contrary to law (general rule) Supervisors – are not allowed to join unions The security guards – because they are armed; it will be easy for them to threaten both employer and employee Political parties to participate barangay election – the purpose is to have a grassroots participation (walay makadaog na independent if nay big political

party)

- The right is thus recognized as belonging to people whether employed or unemployed, whether in the government or private sector.- Also explicitly recognizes that the right to form associations includes the right to unionize.- Degree of protection an association enjoys: depends on the position which the association’s objective or activity occupies in the constitutional hierarchy of values.

* 3 categories of workers: Government employees Supervisory employees

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Security guards

* 2 areas of associational activity: Labor unionism Communist organization

* 2 distinct categories of managerial employees: Managers per se à top and middle managers Supervisors à first-line managers

- The government must comply with the heavy burden of showing that the organization in fact presents a clear and present danger of a substantive evil which the State has a right to prevent.- Emphasis is made in the public sector, the only difference in a union in a public and private sector is that they (public) cannot engage in concerted activities (ex. To strike)- The justification of this is that they are in public service and they cannot negotiate through collective bargaining. The government employees cannot negotiate with the government because their salary is determined by law. - This only pertains to strikes, not rallies for as long as they do not prejudice their works.

* (Elizalde) – closed shop agreement is an exemption; you can only enjoy the privilege from the collective bargaining if you are a member of the union. It is for the purpose of protecting the economic interest.

K. Non-impairment clause

“Article III, Section 10. No law impairing the obligation of contracts shall be passed.”

* Section 10 dissected:a. Law. à It includes statutes enacted by the national legislature, executive orders and administrative regulations promulgated under a valid delegation of

power, and municipal ordinances passed by the local legislative bodies. It does not include judicial decisions or adjudications made by administrative bodies in the exercise of their quasi-judicial powers.

b. Impairment. à It is anything that diminishes the efficacy of the contract.c. Obligation. à The obligation of a contract is the law or duty which binds the parties to perform their undertaking or agreement according to its terms and

intent.d. Contracts. à It refers to any lawful agreement on property or property rights, whether real or personal, tangible or intangible. The agreement may be

executed or executory. It does not include licenses and public office.

* Substantial impairment: A law which changes the terms of a legal contract between parties, either in the time or mode of performance, or imposes new conditions, or dispenses with those expressed, or authorizes for its satisfaction something different from that provided in its terms, is law which impairs the obligation of a contract and is thereof null and void. (Clemons vs. Nolting)

* To come under a constitutional prohibition, the law must effect a change on the rights of the parties with reference to each other and not with reference to non-parties. What the prohibition envisions are enactments passed by a governmental law-making body.

*Purpose:- The purpose of the non-impairment clause is to safeguard the integrity of valid contractual agreements against unwarranted interference by the State. As a rule, the will of the obligor and the obligee must be observed and the obligation of their contract must not be impaired.

* When impairment occurs: - To impair, the law must retroact so as to affect existing contracts concluded before its enactment.- A later law (except if it involves police power) which enlarges, abridges, or in any manner changes the intent of the parties to the contract necessarily impairs the contract itself and cannot be given retroactive effect without violating the constitutional prohibition against impairment of contracts.- Impairment is anything that diminishes the efficacy of the contract. The degree of diminution is immaterial. As long as the original rights of either of the parties are changed to its prejudice, there is an impairment of the obligation of the contract. - In case of remedies, there will be impairment only if all of them are withdrawn, with the result that either of the parties will be unable to enforce his rights under the original agreement. There will be no impairment as long as a substantial and efficacious remedy remains. This rule holds true even if the remedy retained is the most difficult to employ and it is the easier ones that are withdrawn.

* When allowed: - While non-impairment of contracts is constitutionally guaranteed, the rule is not absolute, since it has to be reconciled with the legitimate exercise of police power.- The prohibition is general, affording a broad outline and requiring construction to fill in the details. The prohibition is not to read with literal exactness like a mathematical formula for it prohibits unreasonable impairment only. In spite of the constitutional prohibition the State continues to possess authority to safeguard the vital interests of its people.- A contract cannot be raised as a deterrent to police power, designed precisely to promote health, safety, peace, and enhance the common good, at the expense of contractual rights, whenever necessary. Legislation appropriate to safeguard said interest may modify or abrogate contracts already in effect. For not only are existing laws read into contracts in order to fix the obligations as between the parties but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order. All contracts made with reference to any matter that is subject to regulation under the police power must be understood as made in reference to the possible exercise of that power.- Police power cannot be surrendered or bargained away through the medium of a contract. Every contract affecting the public interest suffers a congenital infirmity in that it contains an implied reservation of the police power as a postulate of the existing legal order. This power can be activated at any time to change the provisions of the contract, or even abrogate it entirely, for the promotion or protection of the general welfare.

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* Q: Who are prohibited from impairing obligations of contracts?A: Those who exercise legislative function. Prohibit from passing a law that would interfere or change the intent of an existing contract.

* Contract – lawful agreement involving property or property rights, whether real or personal, tangible or intangible, which may result to an obligation between two parties.* Impairment – diminishes the efficacy of the contract, regardless the DEGREE. However, with regards to remedies, impairment only occurs if all of the remedies are withdrawn.

* Note: there are certain contracts where in non-impairment clause does not apply.Ex (1). Marriage Contract because this is more than a mere agreement between the spouses as it is regarded as a social institution subject at all times to regulation by the legislature and to change of the original conditionEx (2). The Grant of Permits or license can also be revoked. This can be done since such permits are only certain privileges granted by the state subject to revocation if the public welfare so requires.Ex (3). Pensions received by retirees and bonuses received by government employees can also be revoked because they are not a property right. Such are not a property subject to contract

* Q: When does impairment occurs?A: It occurs when a law must RETROACTS so as to affect existing contracts concluded before its enactment. Later law which changes the INTENT of the parties to the contract is what is prohibited.

NOTE HOWEVER: Even when the law is passed and applied retroactively yet it does not change the contract, it is not violative of the non-impairment clause. (Sample situation: increase of sale stock).

Note: the conditions are adding or subtracting from the contract. Or the new term is different from what was originally provided for in the contract.

* Non-impairment clause is not an absolute prohibition. If it is for the welfare of the people, it can be breached by a subsequent law (exercise of police power)

* Q: Should imposed administrative rules and regulation be subject of the non-impairment clause?A: NIC extends to rules and regulations of administrative agency. Such rules are not allowed to contravene contracts (ex. if such will change the intent of the contract)

NOTE: Ordinances and resolutions cannot also change the terms and agreement of existing contract

NIC does NOT include judicial decision. Judicial decisions should not intervene the content of an existing contract. GR is that the court should respect the terms of the party. This is because judicial decisions are not laws. However, if the interest has become unconscionable, (penalties are too expressive), such can be reduced by the court to 12% per annum.

Note: Public office is not a property or property right thus cannot be under the protection of non-impairment clause and therefore can be a subject of the limitation of laws.

* EXCEPTIONS: (cases when even if the law alters or changes the agreement it is non-violative of the non impairment clause)

a. Law was passed under the exercise of police power (ex. Increase of the minimum wage) – this is curative in nature thus can be applied retroactively

NOTE: Police power is much superior. If the new law pertains to matters which are procedural or remedial, it can be applied retroactively even if it affects existing contract. It does not affect substantive rights.

b. With the exercise of eminent domain power

Q: Can a lessee complain that you cannot expropriate land because it impairs the contract that the lease is for one year?A: No. Eminent domain power is more superior that non impairment clause. What the lessor can do is ask for just compensation for the damages due to loss of income and of the property. Lessee on the other hand can demand for damage if he has suffered due to loss of place to live in.

c. Taxation powerIn case of a conflict, taxation will prevail because it is the life blood of the government. The tax law can be applied retroactively.

Note: the grant of exemption cannot be repelled if such exemption is made on valuable consideration (onerous)

d. Freedom of ReligionCBA between employee and union will govern agreement on the terms and conditions of employment for a certain period of time. Example, if the agreement was about the salary, it is but fair that only the member of the union can enjoy such privilege (closed shop agreement). Such is allowed under existing laws. However, there are some religious sect that does not allow its members to become members of any union. Because of the need for the benefits, they are forced to become members of the union. Because of this circumstance, there was a law passed exempting the members of iglesia ni cristo from the closed shop agreement.Q: Is this not a violation of non-impairment clause>A: No because as between non impairment and freedom of religion, freedom of religion prevails

e. FRANCHISES granted by government through Congress

NOTE: “Unless otherwise provided by law” – pertains to future law. Thus if you sign the contract, you waive the right- Government gives such company to engage in business for 25 years renewable

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Q: can the government revoke such franchise without violating the non-impairment clause?A: NO, this is an exemption. The Constitution provides for the exemption. Franchises are subject to alteration, amendment and repeal when the public protection demands (Alcala case) or when the general welfare so requires it

Q: Why is this allowed?A: Because a franchise is not a property or property rights.

L. Free access to courts

“Article III, Section 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.”

- Those protected include low paid employees, domestic servants and laborers. They need not be persons so poor that they must be supported at public expense. It suffices that plaintiff is indigent

* indigent persons – persons who have no property or sources of income sufficient for their support aside from their own labor through self-supporting when able to work and in employment

* 2 requirements for the success of a free access plea:1. The interest sought to be protected must be fundamental; and2. It must be objectively impossible to protect the interest except in a court of law.

M. Custodial Investigation

“Article III, Section 12.1. 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 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, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms 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 the rehabilitation of victims of torture or similar practices, and their families.”

Custodial Investigation – involves any questioning initiated by law enforcement authorities after a person is taken into custody or otherwise deprived of his freedom of action in any significant manner

Rights made available to a person under investigation:1) The right to remain silent;

- a person under investigation has the right to refuse to answer any question- his silence may not be used against him

2) The right to competent and independent counsel preferably of his own choice; - What the Constitution requires is the presence of an independent and competent counsel, one who will effectively undertake his client’s defense without any intervening conflict of interest. (People vs. Tomaquin)- if the accused never raises an objection to counsel given to him, he is deemed to have been properly counseled

3) The right to be informed of such rights - it would not be sufficient for a police officer just to repeat to the person under investigation the provisions of the Constitution- he is not only duty-bound to tell the person the rights to which the latter is entitled; he must also explain their effects in practical terms- the right of a person “to be informed” implies a correlative obligation on the part of the police investigator to explain, and contemplates an effective communication that results in understanding what is conveyed

Miranda rights: (Miranda vs. Arizona)1) To person in custody must be informed at the outset in clear and unequivocal terms that he has a right to remain silent;2) After being so informed, he must told that anything he says can and will be used against him in court;3) He must be clearly informed that he has the right to consult with a lawyer and to have a lawyer with him during the interrogation. He does not have to ask

for a lawyer. The investigators should tell him that he has the right to counsel at that point;4) He should be warned that not only he has the right to consult with a lawyer but also that if he is indigent, a lawyer will be appointed to represent him;5) Even if the person consents to answer questions without the assistance of counsel, the moment he asks for a lawyer at any point in the investigation, the

interrogation must cease until an attorney is present;6) If the foregoing protections and warnings are not demonstrated during the trial to have been observed by the prosecution, no evidence obtained as a

result of the interrogation can be used against him.

New legal developments (from Miranda Rights): (People vs. Mahinay)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; Every other warnings, information or communication must be in a language known to and understood by said person;

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;

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4) He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court upon petition of the person arrested or one acting in his behalf;

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 - 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 any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-government organization. It shall be the responsibility of the officer to ensure that this is accomplished;

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 in writing AND in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist on his waiver and chooses to speak;

9) That 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 warning that once he makes such indication, the police may not interrogate him if the same had not yet commenced, or the interrogation must ceased 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 answered some questions or volunteered some statements;

11) He must also 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.

* The phrase "preferably of his own choice" does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling the defense; otherwise the tempo of custodial investigation will be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer who, for one reason or another, is not available to protect his interest. (People vs. Mojello)

* We ruled in People v. Continente that while the choice of a lawyer in cases where the person under custodial interrogation cannot afford the services of counsel – or where the preferred lawyer is not available – is naturally lodged in the police investigators, the suspect has the final choice as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused when he does not raise any objection against the counsel's appointment during the course of the investigation, and the accused thereafter subscribes to the veracity of the statement before the swearing officer. (People vs. Mojello)

Rule begins to be availableà where the investigation ceases to be a general inquiry into an unsolved crime and direction is then aimed upon a particular suspect who has been taken into police custody and to whom the police would then direct interrogatory questions which tend to elicit incriminating statements

* The moment the offender is in the custody of the law, such person is now entitled of due process of law.

* The text of 1987 Constitution has preserved the phrase “person under investigation” without the word “custodial”, to expand the coverage of the right to situations when a person under investigation is not yet I custody. The intention was to extend the guarantee beyond mere strict custodial investigation. The right should extend to the period of “custodial interrogation, temporary detention and preliminary technical custody”.

* Custodial investigations does not apply to spontaneous statements.

When Section 12(1) rights endà outside of the situation (where enquiry is under the control of police officers)à a defendant on trial or under preliminary investigation is not under custodial investigation; his interrogation by the police, if any there had been would already have been ended at the time for the filing of the criminal case in court (or in the public prosecutor’s office)

* The accused in court (or undergoing preliminary investigation before the public prosecutor), in common with all other persons, possesses the right against self-incrimination.

* Exception: Even after the charges are filed, the police might still attempt to extract confession or admissions from the accused outside of judicial supervision. In such situation, Section 12(1) would still apply.

Waiver of the rightsà The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. (People vs. Galit)à “These rights cannot be waived except in writing and in the presence of counsel.” (This is absolute.)à The waiver must be in language which clearly manifests the desire to waive the right.

* If there is no counsel available, you can’t waive because it cannot be a valid waiver.

* The prosecution must prove with strongly convincing evidence that indeed the accused willingly and voluntarily submitted their confessions and knowingly and deliberately manifested that they were not interested in having a lawyer to assist them during the taking of the confession.

*The rights subject to waiver are the right to remain silent and the right to counsel, but not the right to be informed of such rights.

Examples of those who are not impartial counsel:1) Special counsel, public or private prosecutor, counsel of the police, or a municipal attorney whose interest is adverse to that of the accused;2) A mayor, unless the accused approaches him as counselor or adviser;

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3) A barangay captain;4) Any other whose interest may be adverse to that of the accused

Right against coerced confessionsà “No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him.”à “Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.”

Exclusionary ruleà “Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.”à The exclusionary rule laid down by the new provision is broader than the exclusion merely or blatantly coerced confession. It covers every form of evidence obtained in violation of Section 12 and 17, every form of confession tainted with involuntariness.

* Where the confession is involuntary, being due to maltreatment or induced by fear or intimidation, there is a violation of the constitutional provision. Any form of coercion whether physical, mental, or emotional thus stamps it with inadmissibility. What is essential for its validity is that it proceeds from the free will of the person confessing.

* The protection covered not only “confessions” but also “admissions”.* “admissions” – the act, declaration or mission of party as to a relevant fact (Rule 130, Section 26)* “confessions” – the declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein (Rule 130, Section 33)

* Against whom are illegal confessions and admissions inadmissible? This text makes them inadmissible “against him”, that is, against the source of the confession or admission.

* Section 3 à makes evidence illegally obtained “inadmissible for any purpose in any proceeding”* Section 12 à says that confession made in violation of the section and of Section 17 “shall be inadmissible in evidence against him”

Retroactivity or prospectivity?à The Supreme Court arrived at the conclusion that the Escobado-Miranda rule should be applied only prospectively.à Hence, it was made applicable only to trials begun after the rule was announced.

Penal and civil sanction, compensation and rehabilitation* civil sanction à in the form of damages is, strictly speaking, already covered by the Civil Code provision on actionable violations of constitutional rights* penal sanction à meant to be deterrent against violation* compensation and rehabilitation à are social welfare measuresà “The law shall provide for penal and civil sanctions for violations of this Section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families.”

* The way the provision is worded, however, it will still need implementing legislation.

“Article III, Section 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.”

Right to bail – a corollary to the right to be presumed innocent, is, like the privilege of the writ of habeas corpus, another means of immediately obtaining liberty; enables the accused to prepare his defense

Bail – a mode of short confinement which would, with reasonable certainty, insure the attendance of the accused

Why is bail awarded to the accused?1) To honor the presumption of innocence until his guilt is proven beyond reasonable doubt; and2) To enable him to prepare his defense without being subject to punishment prior conviction

When is the right to bail available?à When one is under the custody of the law either when he has been arrest or has surrendered himself to the jurisdiction of the court.* Formal charges are not necessary in order to avail the right to bail.

When is there no constitutional right to bail?1) The offense charged must be capital [now punishable by a least reclusion perpetua];2) The evidence of guilt must be strong;3) “It must appear that in case of conviction the defendant’s criminal liability would probably call for capital punishment”

*If capital offenses or offenses punishable by reclusion perpetua are not made bailable, it is because frequently nothing short of confinement can insure the attendance of one who expects to receive such sentences.* “Where, however, the right to bail exists, it should not be rendered nugatory by requiring a sum that is excessive.”

Under Revised Rules of Criminal Procedure: MTC/MTCC

* before conviction à bail is a matter of right

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* after à bail is a matter of right RTC

* before conviction à bail is a matter of right* after conviction à bail is discretionary

MTC/MTCC* Charged with capital offense à denial

RTC* Charged with capital offense à granted (subject to discretion)

Certain duties imposed upon the judge:1) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation.2) Conduct a hearing (which is indispensable) of the application for bail regardless of whether or not the prosecution refuses to present evidence to show

that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion.3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution.4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bail bond. Otherwise, petition should be denied.

What should be done in capital cases?* A hearing mandatory is required with the participation of both the defense and a duly notified representative of the prosecution for the purpose of ascertaining whether or not the evidence of guilt is strong.* burden of proof à is on the prosecution to show that the evidence meets the required quantum.* The prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may want to introduce before the court may resolve he application, since it is equally entitled as the accused to due process.* The petitioner has the right to cross-examine the witnesses and present his own evidence in rebuttal.* The court issues an order either granting or refusing bail, the same should contain a summary of the evidence for the prosecution, followed by its conclusion as to whether or not the evidence of guilt is strong.* “clear and convincing evidence” à the quantum of evidence needed in order to deny an accused the right to bail

Meaning of “strong evidence” for purposes of denying bail: “proof evident” or “evident proof” – clear strong evidence which leads a well-grounded dispassionate judgment to the conclusion that the offense has

been committed as charged, that accused is the guilty agent, and that he will probably be punished capitally if the law is administered “presumption great” – exists when the circumstances testified to are such the interference of guilt naturally to be drawn therefrom is strong, clear, and

convincing to an unbiased judgment and excludes all reasonable probability of any other conclusion

* The test is not whether the evidence establishes guilt beyond reasonable doubt but rather whether it shows evident guilt or a great presumption of guilt.

Factors which must be considered in determining bail:1) Ability to post bail2) Nature of the offense3) Penalty imposed by law4) Character and reputation of the accused5) Health of the accused6) Strength of the evidence7) Probability of appearing for trial8) Prior forfeiture of bonds9) Whether the accused was a fugitive from justice when arrested10) Whether under bond in other cases

The criterion for determining whether the offense is punishable by reclusion perpetua à “The criterion to determine whether the offense charged is capital is the penalty provided by the law regardless of the attendant circumstances.” To require more will entail consideration not only of evidence showing commission of the crime but also evidence of the aggravating and mitigating circumstances.

Implicit limitation on the right to bail:1) The person claiming the right must be under actual detention2) The constitutional right is available only in criminal cases

* The judge, however, has no authority to change the characterization of the offense, (for instance from murder to homicide).

* A court cannot require a strictly cash bond. The sole purpose of bail is to insure the attendance of the accused when required by re court, and there should be no suggestion of penalty on the part of the accused nor revenue on the part of the government. The allowance of a cash bond in lieu of sureties is authorized in this jurisdiction only because our rules expressly provide for it. And even where cash bail is allowed, the option to deposit cash in lieu of a surety bond primarily belongs to the accused.

* Since bail is constitutionally available to “all persons”, it must be available to one who is detained even before formal charges are filed.

* The person claiming the right must be under actual detention or custody of the law. à One is under the custody of the law either when he has been arrested or has surrendered himself to the jurisdiction of the court.* If granted bail, the accused does not necessarily have the right to leave the country. A court may prevent a person admitted to bail from leaving the country.

* The constitutional right to bail is available only in criminal proceedings. Thus, it has been repeatedly held that respondents in deportation proceedings, which are administrative in nature, do not enjoy the right.

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* The right to bail has traditionally not been recognized and is not available in the military, for which reason the right to speedy trial is given more emphasis. “The unique structure of the military should be enough reason to exempt military men from the constitutional coverage on the right to bail. … Aside from structural peculiarity, it is vital to note that mutinous soldiers operate within the framework of democratic system, are allowed the fiduciary use of firearms by the government for the discharge of their duties and responsibilities and are paid out of revenues collected from the people. All other insurgent elements carry out their activities outside of and against the existing political system. … National security considerations should also impress upon this Honorable Court that release on bail of respondents constitutes a damaging precedent.” (Comendador vs. De Villa)

* It has also been held that the right to bail may be waived even implicitly in an irrevocable manner. “The accused waived his right when he agreed to remain in legal custody even during the pendency of the trial of his criminal case.” (People vs. Donato)

Distinction between “life imprisonment” and “reclusion perpetua”:Life imprisonment Reclusion perpetua

Penalty in special laws Imposed by the Revised Penal CodeDoes not carry accessory liabilities DoesIndefinite 30 years after which the convict is eligible for pardon

* Effective October 1, 1994, Rule 114 was amended à placing “life imprisonment” on the same level as death and reclusion perpetua.

* The prosecution must show that there is strong evidence of guilt of a capital offense [now of an offense punishable by at least reclusion perpetua]. Evidence characterized merely as “sufficient” does not satisfy the constitutional requirement. The word “strong”, however, does not mean that the prosecution must present proof beyond reasonable doubt.

* The constitutional right to bail necessarily includes the right to a hearing. When bail is denied without a hearing, a fundamental right is violated. The hearing, however, need not be separate and distinct from the trial itself. And it need only be summary. The right to a prompt hearing is waived by agreeing to postponements.

* That parallel to the accused’s right to a hearing is the prosecutions’ right to present evidence. If the prosecution is denied such right, the grant of bail is void.

Does the right to bail exist in extradition proceedings?* During the extradition proceedings à cannot avail bail

The Court emphasized that bail may be granted to a possible extraditee only upon a clear and convincing showing:1) That he will not be a flight risk or a danger to the community;2) That there exists special, humanitarian and compelling circumstances

The Court said that it could not ignore the following trends in international law:1) The growing importance of the individual person in public international law who has gradually attained global recognition;2) The higher value now being given to human right in the international sphere;3) The corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations;4) The duty of the Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other.

* The suspension of the privilege of the writ of habeas corpus does not suspend the right to bail.

* The 1987 Constitution also recognizes “recognizance as may be provided by law” as another instruments for obtaining release from detention.

Forms of bail: Corporate surety Property bond Cash deposit Recognizance

Recognizance – is an obligation of record entered into before a court guaranteeing the appearance of the accused for trial; it is in nature of a contract between surety and the state

* The Constitution prohibits “excessive bail”.

“Article III, Section 14.1. No person shall be held to answer for a criminal offense without due process of law.2. 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 his failure to appear is unjustifiable.”

* The requirement that “No person shall be held to answer for a criminal offense without due process of law” simply requires that the procedure established by law be followed.* Due process is satisfied if the accused is “informed as to why he is proceeded against and what charge he has to meet, with his conviction being made to rest on evidence that is not tainted with falsity after full opportunity for him rebutting it and the sentence being imposed in accordance with law.” It is assumed that the court that rendered judgment is one of competent jurisdiction.

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* “To warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influences, not simply that they might be, by the barrage of publicity.”

2 different approaches to adverse publicity:1. British approach – which presumes that publicity will prejudice a jury2. American approach – which looks with skepticism on the potential effect of publicity on the right to a fair trial and which requires substantial probability

of irreparable harm, strong likelihood, clear and present danger, etc.

* Generally, the Supreme Court has no supervisory authority over military courts. Military courts cannot have jurisdiction over civilian when civilian courts are open and functioning.

Some of the basic rights of the accused:1. Right to be presumed innocent2. Right to be heard by himself and counsel3. Right to be informed of the nature and cause of the charge

4. Right to have speedy, impartial and public trial5. Right to confrontation6. Right to have compulsory process

When do these rights become available to a person? The right to be present “in all criminal prosecutions” must be understood as securing to him merely the right to be present during every step in the trial in

the court; and that the phrase ‘at the trial’ is to be taken ‘to include everything that is done in the course of the trial, from the arraignment until the sentence is announce.’ (US vs. Beecham)

The right of confrontation is not available during the preliminary examination under Rule 112, Section 1, of the former Revised Rules of Court. (Dequito vs. Arellano)

The right to counsel is available only after arraignment because it is a right “in all criminal prosecutions” by which Beecham case had been interpreted to mean the period from arraignment to rendition of judgment. (People vs. Jose)

Presumption of innocence The Constitution mandates that an accused shall be presumed innocent until the contrary is proved beyond reasonable doubt. The prosecution has the burden to overcome such presumption of innocence by presenting the quantum of evidence required. The prosecution must rest on its own merits and must not rely on the weakness of the defense.

How is the presumption of innocence overcome? Only by proof beyond reasonable doubt This, however, must be understood to simply mean that if the accused fails to present evidence creating reasonable doubt, there would be enough ground

for conviction. It is the conviction that can terminate the presumption. But if the initial conviction is appealed, the presumption remains. The Court added that must be remember that the existence of a presumption indicating the guilt of the accused does not in itself destroy the

constitutional presumption of innocence unless the inculpating presumption, together with all the evidence, or the lack of any evidence or explanation, proves the accused’s guilt is shown in this manner, the presumption of innocence continues.

Does the presumption of innocence preclude the State from shifting the burden of proof to the accused? The State having the right to declare what acts are criminal, within certain well defined limitations, has a right to specify what act or acts shall constitute a

crime, as well as what proof shall constitute prima facie evidence of guilt, and then to put upon the defendant the burden of showing that such act or acts are innocent and are not committed with any criminal intent or intention.

* The legislature may provide for prima facie evidence of guilt of the accused and shift the burden of proof provided there be a rational connection between the facts provided and the ultimate fact presumed so that the inference of the one from proof of the others is not unreasonable and arbitrary because of lack of connection between the 2 in common experience. (Banares vs. Court of Appeals)

* (Dumlao vs. COMELEC) The challenged proviso contravenes the constitutional presumption of innocence, as a candidate is disqualified from running for public office on the ground alone that charges have been filed against him before a civil or military tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of proof, no distinction is made between a person convicted of acts of disloyalty and one against whom charges have been filed for such acts, as both of them would be ineligible to run for public office. A person disqualified to run for public office on the ground that charges have been filed against him is virtually placed in the same category as a person already convicted of a crime with the penalty of arresto, which carries with it the accessory penalty of suspension of the right to hold office during the term of the sentence (Art. 44, Revised Penal Code).

Equipoise Rule – where the evidence of the parties in a criminal case is evenly balanced, the constitution presumption of innocence should tilt the scales in favor of the accused. There is no equipoise rule if the evidence is not evenly balanced. The rule cannot be invoked where the evidence of the prosecution is overwhelming.

Right to be heard by himself and counsel

Right to be heard; elements:1. Right to be present at trial2. Right to counsel3. Right to an impartial judge

4. Right of confrontation5. Right to compulsory process to secure attendance of witnesses

Scope of the right to be present at trial: It covers only the period from arraignment to promulgation of sentence. However, this has been modified by Section 14(2) which says that “after arraignment, trial may proceed notwithstanding the absence of the accused

provided that he has been duly notified and his failure to appear is unjustifiable.”

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What are conditions for waiver of the right to be present at the trial? The right may be waived “provided that after arraignment he may be compelled to appear for the purpose of identification by the witnesses of the

prosecution, or provided he unqualifiedly admits n open court after his arraignment that he is the person named as the defendant in the case on trial.

* In order for him to be excused completely from appearance it is not enough that he allows himself to be identified by witnesses in his absence. He must further unqualifiedly admit that every time a witness mentions a name by which he is known, the witness is to be understood as referring to him.

* The text of the Constitution arraignment a prerequisite for trial in absentia. The reason for this is that it is during arraignment that the accused is informed of the nature and cause of the accusation against him.

What is the presumption in the matter of waiver of a constitutional right? The presumption is always against the waiver. Consequently, the prosecution must prove with strongly convincing evidence to the satisfaction of this Court that indeed the accused willingly and

voluntarily submitted his confession and knowingly and deliberately manifested that he was not interested in having a lawyer assist him during the taking if that confession.

What is the reason for allowing trial in absentia? To speed up the disposition of criminal cases.

Why must an accused enjoy the right to counsel? This is a realistic recognition of the obvious truth that the average defendant does not have the professional skill to protect himself when brought before a

tribunal with power to take his life or liberty, wherein the prosecution is represented by an experienced and learned counsel.

Pre-arraignment duties of the trial judge:1. To inform the accused that he has the right to have his own counsel before being arraigned,2. After giving such information, to ask the accused whether he desires the aid of counsel,3. If he so desires to procure the services of the counsel, the court must grant him reasonable time to do so,4. If he so desires to have counsel but is unable to employ one, the court must assign counsel de oficio to defend him.

* It should be noted that under present jurisprudence the counsel de oficio must be a qualified lawyer. The duty is mandatory only at the time of arraignment.

* However, there is no denial of the right to counsel where a counsel de oficio was appointed during the absence of the accused’s counsel de parte pursuant to the court’s desire to finish the case as early as practicable under the continuous trial system.

* The right to counsel may be waived.

At what point in the criminal proceeding is the accused entitled to counsel? “in all criminal prosecutions” à covers the period from arraignment to rendition of judgment However, that under the circumstances of Section 12(1) a right to counsel also exists before arraignment.

* (People vs. Santocildes) Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. The right of an accused to counsel is guaranteed to minimize the imbalance in the adversarial system where the accused is pitted against the awesome prosecutory machinery of the State. Such a right proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned. The due process requirement is a part of a person’s basic rights; it is not a mere formality that may be dispensed with or performed perfunctorily.

* (People vs. Bermas) The right to counsel must be more than just the presence of a lawyer in the courtroom or the mere propounding of standard questions and objections. The right to counsel means that the accused is amply accorded legal assistance extended by a counsel who commits himself to the cause for the defense and acts accordingly. The right assumes an active involvement by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his being well-versed on the case, and his knowing the fundamental procedures, essential laws and existing jurisprudence. The right of an accused to counsel finds substance in the performance by the lawyer of his sworn duty of fidelity to his client. Tersely put, it means an efficient and truly decisive legal assistance and not a simple perfunctory representation.

* (People vs. Chiongson) An examination of related provisions in the Constitution concerning the right to counsel, will show that the "preference in the choice of counsel" pertains more aptly and specifically to a person under investigation rather than one who is the accused in a criminal prosecution.

Even if we were to extend the application of the concept of "preference in the choice of counsel" to an accused in a criminal prosecution, such preferential discretion cannot partake of a discretion so absolute and arbitrary as would make the choice of counsel refer exclusively to the predilection of the accused.

Applying this principle enunciated by the Court, we may likewise say that the accused's discretion in a criminal prosecution with respect to his choice of counsel is not so much as to grant him a plenary prerogative which would preclude other equally competent and independent counsels from representing him. Otherwise, the pace of a criminal prosecution will be entirely dictated by the accused to the detriment of the eventual resolution of the case.

Right to be informed of the nature and cause of the accusation against him; purpose and scope: (People vs. Valdesancho)1. To furnish the accused with such a description of the charge against him as will enable him to make his defense2. To avail of himself of his conviction or acquittal for protection against a further prosecution for the same cause3. To inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had.

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What must a criminal information contain in order to comply with the constitutional right of the accused to be informed of the nature and cause of the accusation against him? (People vs. Quitlong)

1) Name of the accused2) The designation given to the offense by the statute3) A statement of acts or omission so complained of as constituting the offense4) The name of the offended party5) The approximate time and date of the commission of the offense6) The place where the offense has been committed

* (People vs. Valdesancho) Article III, Section 14 of the 1987 Constitution mandates that no person shall be held liable for a criminal offense without due process of law. It further provides that in all criminal prosecutions, the accused shall be informed of the nature and cause of accusation against him and shall enjoy the right to be heard by himself and counsel. Similarly, the Revised Rules of Criminal Procedure, as amended, which took effect on December 1, 2000, provides that in all criminal prosecutions, it is the right of the accused to be informed of the nature and cause of the accusation against him. To convict an accused for an offense not alleged in the complaint or information violates such right.

* (People vs. Alcalde) Settled is the rule that when a judge is informed or discovers that an accused is apparently in a present condition of insanity or imbecility, it is within his discretion to investigate the matter. If it be found that by reason of such affliction the accused could not, with the aid of counsel, make a proper defense, it is the duty of the court to suspend the proceedings and commit the accused to a proper place of detention until his faculties are recovered.[28] Moreover, the aforementioned Section 12(a) of Rule 116 mandates the suspension of the arraignment and the mental examination of the accused should it appear that he is of unsound mind.

The constitutional right to be informed of the nature and cause of the accusation against him under the Bill of Rights carries with it the correlative obligation to effectively convey to the accused the information to enable him to effectively prepare for his defense. At the bottom is the issue of fair trial. While not every aberration of the mind or exhibition of mental deficiency on the part of the accused is sufficient to justify suspension of the proceedings, the trial court must be fully satisfied that the accused would have a fair trial with the assistance the law secures or gives. Under the circumstances in these cases, the trial court gravely failed in this regard.

* (People vs. Flores) The allegation that accused-appellant did "sexually abuse" Filipina does not suffice. In the recent case of People v. Lito Egan alias Akiao, this Court ruled that "although the prosecution has proved that [the therein private complainant] Lenie was sexually abused, the evidence proffered is inadequate to establish carnal knowledge." Hence, sexual abuse cannot be equated with carnal knowledge or sexual intercourse. The allegation in the instant criminal complaints that accused-appellant "sexually abuse[d]" the private complainant cannot thus be read to mean that accused-appellant had carnal knowledge or sexual intercourse with the private complainant.

* The information need not allege the precise time of the commission of the offense, unless time is an essential element of the crime charged. What is essential therefore is that the accused be informed of the facts alleged against him; he need not be informed of the characterization of the crime, which is the conclusion of law.

Right to speedy, impartial and public trial

Right to speedy trial- It means a trial free from vexatious, capricious and oppressive delays.- However the concept of speedy trial is relative and the determination of whether the right has been violated must be based on the balancing of various factors.

While length of delay is a factor, other factors are considered:1) reason for delay2) effort of defendant to assert his right3) prejudice caused to the defendant

What is the remedy for violation of the right to speedy trial?- The accused is entitled to dismissal of the case, and, if he is under detention, to release by habeas corpus. Moreover, dismissal for violation of the right to

speedy trial is equivalent to acquittal and is a bar to another prosecution for the same offense.

* (Martin vs. Ver) "x... the test of violation of the right to speedy trial has always been to begin counting the delay from the time the information is filed, not before the filing. The delay in the filing of the information, which in the instant case has not been without reasonable cause, is therefore not to be reckoned with in determining whether there has been a denial of the right to speedy trial."

Returning to the case at hand, the criminal act imputed to the petitioner unfortunately resulted in the death of three persons (including Rogelio Cruz who allegedly bought the hand grenades from the petitioner) and very serious injuries to three others whose testimony is vital to the preferment of charges and prosecution of the petitioner. It is therefore not unreasonable to heed the claim of respondents that the delay complained of was occasioned by the unavailability of witnesses, a claim which has not at all been challenged or denied by the petitioner.

* (People vs. Gines) On the issue of the right of the accused to a speedy trial, the Court finds that said right has not been violated in the case at bar and thus holds that the dismissal of the case as regards private respondents Labo and Floresca is premature and erroneous. "The right of an accused to a speedy trial is guaranteed to him by the Constitution but the same shall not be utilized to deprive the State of a reasonable opportunity of fairly indicting criminals. It secures rights to a defendant but it does not preclude the rights of public justice."The Court is convinced that private complainant's absences at the hearings of the case were in good faith and that he had justifiable and meritorious reasons therefore. Said absences are evidently not capricious, oppressive, nor vexatious to the two accused who had waived their appearance at the trial of the case. It should be remembered that the right to a speedy trial is relative, subject to reasonable delays and postponements arising from illness, medical attention, body operations, as in the instant case where it was satisfactorily proven that private complainant had to undergo eye operations, hospitalization and a medical check-up abroad. The subject case for libel was dismissed on October 15, 1987, some eight and a half months after the information was filed. This period is not such an extended,

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prolonged or lengthy duration as to cause capricious and vexatious delay. For, speedy trial means one that can be had as soon after indictment is filed as the prosecution can with reasonable diligence prepare for trial (Mercado v. CFI, supra). While accused persons do have rights, many of them choose to forget that the aggrieved also have the same rights.

Right to impartial trial- It simply requires the cold neutrality of an impartial judge.

* (People vs. Opida) Time and again this Court has declared that due process requires no less than the cold neutrality of an impartial judge. Bolstering this requirement, we have added that the judge must not only be impartial but must also appear to be impartial, to give added assurance to the parties that his decision will be just. The parties are entitled to no less than this, as a minimum guaranty of due process.

Right to a public trial- It is public when the attendance is open to all irrespective of relationship to defendants.- However, when the evidence presented is characterized as “offensive to decency or public morals,” the proceeding may be limited to friends, relatives, and counsel.

Purpose of public trial- The purpose is to serve “as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.

Right to meet witnesses face to face- to confront and cross-examine the witness against him at the trial

2-fold purpose of confrontation:1) Primarily, to afford the accused an opportunity to test the testimony of the witness by cross-examination2) Secondarily, to allow the judge to observe the deportation of the witness

As a consequence of this right:1) The testimony of a witness who has not submitted himself to cross-examination is not admissible in evidence2) The affidavits of witnesses who are not presented during the trial are inadmissible in evidence

Principal exceptions to the right of confrontation:1) The admissibility of “dying declarations” à they are declarations made in extremity, when the party is at the point of death, and when every hope of this

world is gone; when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth2) Trial in absentia under Section 14(2)

* (People vs. Monje) In the case before us, no less than the presiding judge himself recognized the need for further cross-examination when he warned that witness Cordero should return otherwise his testimony "not touched upon by the cross-examination would be stricken off the record." And the cross-examiner was insisting on the constitutional right of the accused to confront the witnesses against him and to cross-examine them. Even the other witness, Jojit Vasquez, failed to appear on 8 October 1998 when required as may be gathered from the order of the trial court issued on that date. In the instant case, prosecution witness Cordero failed to appear four (4) times for his cross-examination without justifiable reason, thus depriving the cross-examiner of the right to confront him and test his credibility and shed light on matters vital to the defense.

We discussed at length in Seneris the effects of the absence or the incomplete cross-examination of a witness on the admissibility in evidence of his testimony on direct examination. The basic rule is that the testimony of a witness given on direct examination should be stricken off the record where there was no adequate opportunity for cross-examination. Of course, there are notable modifications to the basic rule which make its application essentially on a case-to-case basis. Thus, where a party had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits his right to cross-examine and the testimony given by the witness on direct examination will be allowed to remain on record. But when the cross-examination is not or cannot be done or completed due to causes attributable to the party offering the witness, or to the witness himself, the uncompleted testimony is thereby rendered incompetent and inadmissible in evidence. The direct testimony of a witness who dies before the conclusion of the cross-examination can be stricken only insofar as not covered by the cross-examination, and the absence of a witness is not enough to warrant striking of his testimony for failure to appear for further cross-examination where the witness has already been sufficiently cross-examined, which is not true in the present case, or that the matter on which further cross-examination is sought is not in controversy.

* (People vs. Seneris, 99 SCRA 92)After the direct examination, the defense proceeded with the cross-examination. Due to lack of material time, it was re-set. But before the appointed date, the witness was shot dead.

It is thus apparent that no fault can be imputed to the private respondent for the length of time that elapsed before her counsel was able to commence his cross-examination of the witness. And private respondent's counsel was not able to complete his cross-examination of the witness on June 7, 1978 for lack of material time by reason of which and upon agreement of the parties the hearing was adjourned and ordered resumed on July 3, 1978.

Right to compulsory process- This is the right to secure the attendance of witnesses and the production of evidence in his behalf.

To establish the right to continuance by reason of the absence of witnesses the accused must show: That the witness is really material That he is guilty of no neglect in previously obtaining attendance of said witness That the witness will be available at the time desired That no similar evidence could be obtained

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Trial in absentia- is not absolute- the evident purpose of this is to prevent unnecessary delays of the trial

The presence of the accused is indispensable only during:1) At the arraignment or plea2) During trial3) At the promulgation of sentence

Requisites for a valid trial in absentia:1) When the accused has been arraigned2) When notified of date/hearing3) His absence is unjustified

* Again, for an accused to be excused from attending trial, it is not enough that he vaguely agrees to be identified by witnesses in his absence. He must unqualifiedly admit that every time a witness mentions a name by which he is known, the witness is to be understood as referring to him.

“Article III, Section 15. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion, when the public safety requires it.”

What is habeas corpus?- A write directed to the 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, submit to, and receive whatever the court or judge awarding the writ shall consider in that behalf.

* An essential requisite for the availability of the writ is actual deprivation of personal liberty.

What is the “privilege of the writ of habeas corpus”?- It is the right to have an immediate determination of the legality of the deprivation of physical liberty.

When the writ may be availed of? 1) To have the cause of his detention examined2) To have the issue ascertained as to whether he is held under a lawful authority3) As a consequence of a judicial proceeding:

a. There has been deprivation of a constitutional right resulting in the restraint of the personb. The court has no jurisdiction to impose the sentencec. And excess of penalty has been imposed, since such sentence is void as to the excess

4) Rightful custody of any person is withheld from the person entitled thereto

Privilege of the Writ of Habeas Corpus vs. Writ of Habeas Corpus Privilege of the Writ of Habeas Corpus à Writ of Habeas Corpus à

What is suspended – the writ or the privilege?- The privilege of the writ is what is suspended. The writ is never suspended, it always issues as a matter of course.Purpose of Writ of Habeas Corpus- It is to inquire into all manner of involuntary restraint distinguished from voluntary, and to relieve a person therefrom is such restraint is illegal. The function is to achieve immediate determination of the legality of the detention.- The objective of the writ is to determine whether the confinement or detention is valid or lawful. If it is, the writ cannot be issued. Its great object of the writ is the liberation of those who may be imprisoned without sufficient cause.

Who may suspend the privilege?à The President

When may the privilege be suspended?1) The existence of actual invasion or rebellion2) When public safety requires the suspension

* The suspension can only validly affect “persons judicially charges for rebellion or offenses inherent in or directly connected with invasion”. For a person to lose the privilege of the writ he must be “judicially charged.”

* A basic rule is that once charges have been filed in court, habeas corpus is no longer available.

Writ of Amparo- It is a remedy available to any person whose right to life, liberty and security is violated.

Writ of Habeas Corpus vs. Writ of Amparo Writ of Habeas Corpus à applies when there is deprivation of liberty Writ of Amparo àapplies when there is deprivation of life, liberty and security (not necessarily actual deprivation, but applies even if there is mere threat)

Writ of Habeas Data

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- 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, hone and correspondence of the aggrieved party.

“Article III, Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.”

Speedy disposition of cases vs. Right to speedy trial Speedy disposition of cases (Section 16) à judicial, quasi-judicial or administrative proceedings Right to speedy trial (Section 14) à criminal proceedings

* (Licaros vs. Sandiganbayan) It must be understood that in the ordinary course of a criminal proceeding, a court is responsible for the ultimate disposition of the case. This is true irrespective of the prosecution’s punctual performance of its duty. Hence, notwithstanding the filing of the information, the presentation of evidence and the completion of the trial proper, the eventual disposition of the case will still depend largely on the timely rendition of judgment by a court. And where it does not act promptly on the adjudication of a case before it and within the period prescribed by law, the accused’s right to a speedy disposition of the case is just as much prejudiced as when the prosecution is prolonged or deferred indefinitely. Accordingly, with all the more reason should the right to the speedy disposition of a case be looked upon with care and caution when that case has already been submitted to the court for decision.

It has been held that a breach of the right of the accused to the speedy disposition of a case may have consequential effects, but it is not enough that there be some procrastination in the proceedings. In order to justify the dismissal of a criminal case, it must be established that the proceedings have unquestionably been marred by vexatious, capricious and oppressive delays.

* (Tilendo vs. Ombudsman)The concept of speedy disposition of cases is relative or flexible. A simple mathematical computation of the time involved is insufficient. The facts and circumstances peculiar to each case must be examined.

The determination whether or not the right has been violated, the following factors must be considered:1) Length of delay2) Reason for the delay3) Assertion of the right or failure to assert it4) Prejudice caused by the delay

What remedy does a person have if there has been unreasonable delay in the resolution of a case?- dismissal through mandamus

* (Binay vs. Sandiganbayan) The constitutional right to “a speedy disposition of cases” is not limited to the accused in criminal proceedings but extends to all parties in all cases, including civil and administrative cases, and in all proceedings, including judicial and quasi-judicial hearings. Hence, under the Constitution, any party to a case may demand expeditious action on all officials who are tasked with the administration of justice.

However, the right to a speedy disposition of a case, like the right to speedy trial, is deemed violated only when the proceedings is attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured, or when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried. Equally applicable is the balancing test used to determine whether a defendant has been denied his right to a speedy trial, or a speedy disposition of a case for that matter, in which the conduct of both the prosecution and the defendant is weighed, and such factors as the length of the delay, the reasons for such delay, the assertion or failure to assert such right by the accused, and the prejudice caused by the delay. The concept of speedy disposition is a relative term and must necessarily be a flexible concept.

“Article III, Section 17. No person shall be compelled to be a witness against himself.”

Right against self-incrimination; purpose of the guarantee:- It was established on the grounds 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; and of humanity, because it would prevent the extorting of confession by duress.- To prohibit compulsory oral examination of prisoners before the trial, or upon trial, for the purpose of extorting unwilling confessions or declarations

implicating them in the commission of a crime.

At what stage of an enquiry may the right against self-incrimination be asserted? Criminal case: à from the moment he is asked to testify

- When to invoke the right, if it is the witness à may assert the right only when the incriminating question is asked- When to invoke the right, it if is the accused à accused has an absolute right to be silent; may refuse to be a witness to be a witness altogether

Civil case:- If the parties and witness à they must wait until the incriminating question is asked

Administrative proceeding:- If penal character à same as criminal proceeding- If otherwise à same as civil proceeding

Scope:The kernel of the right is not against all compulsion, but testimonial compulsion only. What is prohibited is the use of physical or moral compulsion to extort communication from the witness, not an inclusion of his body in evidence, when it may be material.

This does not apply when: (some instances)

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Hair samples are taken from the accused Evidence involving DNA Fingerprinting, photographing and paraffin testing may be taken, etc.

Does this cover handwriting? (Beltran vs. Samson, 50 Phil. 570)Yes, writing is something more than moving the body, hand or finger; writing is not a purely mechanical act, because it requires hand application of the intelligence and attention.

Does this apply when a person is compelled to produce books and papers?Yes, compulsory production of books and papers of the owner is compelling him to be a witness against himself.

When is a question incriminating?- The right thus includes a right to refuse to testify to a fact which would be necessary link in a chain of evidence to prove the commission of a crime by a witness.

* The privilege against self-incrimination “is a personal one, applying only to natural individuals.”

“Article III, Section 18.1. No person shall be detained solely by reason of his political beliefs and aspirations.2. No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.”

What does the 1st paragraph refer to?- Political prisoners

Involuntary servitude- It is every condition of enforced or compulsory service of one to another no matter under what form of such servitude may be disguised.

Exceptions to the rule against involuntary servitude:1) Involuntary servitude may be imposed as a punishment for a crime whereof the party shall have been duly convicted.2) In the interest of national defense all citizens may be compelled by law to render personal military or civil service.3) A return to work order.

“Article III, Section 19.1. Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty 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 any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.”

Right against excessive fines; What do you mean by excessive fines?- A fine is excessive when under any circumstance it is disproportionate to the offense.

When is a penalty “cruel, degrading or inhuman?- It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution.- The punishment must be “flagrantly and plainly oppressive”, “wholly disproportionate to the nature of the offense as to shock the moral sense of the community.

* To be “cruel and unusual” or “excessive” within the meaning of the Constitution, the penalty must be flagrantly disproportionate to the offense no matter under what circumstances the offense may be committed; but to be “clearly excessive” under Article 5 of RPC, it need only be disproportionate to the circumstances of the offense and of the offender.

Is death penalty by itself cruel, degrading or inhuman?- No. Death penalty per se is not a cruel, degrading or inhuman punishment because unconstitutional punishment implies something inhuman and barbarous, something more than the mere extinguishment of life.

What happens to death penalty already imposed?- It is reduced to reclusion perpetua

What are heinous crimes?- Crimes are heinous “for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society.

What is the duty of the judge when an accused pleads guilty to a capital offense?- He must not immediately impose the penalty but must first look into the evidence to see if death is the proper penalty.

“Article III, Section 20. No person shall be imprisoned for debt or non-payment of a poll tax.”

The Constitutional Prohibition, stated in full, means:- “No person may be imprisoned for debt in virtue of an order in a civil proceeding, either as a substitute for satisfaction of a debt or as a means of compelling satisfaction; but a person may be imprisoned as a penalty for a crime arising from a contractual debt and imposed in a proper criminal proceeding.”

APRIL LYNN L. URSAL

Meaning of “debt” in the provision- It means any liability to pay money growing out of a contract, express or implied.

May a person be imprisoned for a fraudulent debt?- Yes, but only if:

1) The fraudulent debt constitutes a crime (e.g. estafa)2) The debtor has been duly convicted

What is a “poll tax”?- A poll tax can be understood as the cedula tax or residence tax.

“Article III, Section 21. 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.”

Requisites for a valid defense of double jeopardy:1) A 1st jeopardy must have attached prior to the second2) The 1st jeopardy must have been terminated3) The 2nd jeopardy must be for the same offense as that in the 1st

When does jeopardy of punishment attach?a) Upon a good indictmentb) Before a competent courtc) After arraignmentd) After plea

How is 1st jeopardy “terminated” in a manner that satisfies the 2nd element of the defense of double jeopardy?1) By acquittal2) By final conviction3) By dismissal without express consent of the accused4) By “dismissal” on the merits

* As a general rule, the dismissal or termination of the case after arraignment and plea of the defendant of a valid information shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same frustration thereof, or for any offense which necessarily includes or is necessarily included in the complaint or information.

* However, an appeal by the prosecution from the order of dismissal (of the criminal case) by the trial court shall not constitute double jeopardy if:1) The dismissal is made upon motion, or with the express consent, of the defendant; and2) The dismissal is not an acquittal or based upon consideration of the evidence or of the merits of the case; and3) The question to be passed upon by the appellate court is purely legal so that should the dismissal be found incorrect, the case would have to be remanded

to the court of origin for further proceedings, to determine the guilt or innocence of the defendant.

* Under the 1 st sentence of the provision à One may be twice put in jeopardy of punishment of the same act, provided that he is charged with different offenses, or the offense charged in one case is not included in, or does not include, the crime charged in the other case.* Under the 2 nd sentence of the provision à Even if the offenses charged are not the same, owing to the fact one constitutes a violation of an ordinance and the other violation of a statute. If the 2 charges are based on one and the same act, conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. * The verbal dismissal is not final until written and signed by the judge.

Termination by acquittal à prosecution cannot appealTermination by conviction à prosecution can appeal

Acquittal vs. Dismissal- There is acquittal when the case is terminated upon the merits of the issue, as when there is a pronouncement that the evidence does not show the guilt

of the accused beyond reasonable doubt.- There is dismissal, in the sense of the rule on jeopardy, when the case is terminated otherwise than upon the merits thereof, as when the dismissal is

based on the allegation that the Court has no jurisdiction either over the subject matter or over the territory, or on any other ground that does not decide the merits of the issue as to whether the accused is or is not guilty of the offense charged.

* provisional dismissal à upon order of the court* permanent dismissal à based upon merits

* Dismissal that is not on the merits and without the consent of the accused is a bar to subsequent prosecution. Termination based on the merits, even when improperly called dismissal, and with or without the consent of the accused, is a bar to further prosecution, because such termination is, in fact, an acquittal.* A dismissal on the ground of denial of the right to a speedy trial amounts to an acquittal. However, when the dismissal or the case clearly constitutes an abuse of discretion amounting to lack or jurisdiction, the dismissal, even if made on the merits, is invalid and is therefore no bar to a reinstatement of the case.

* An order of dismissal in a preliminary investigation does not in any way terminate a case. As long as the crime has not yet prescribed, the city court may conduct a preliminary investigation.

APRIL LYNN L. URSAL

* A defendant’s motion to dismiss for lack of jurisdiction constituted waiver of the defense of double jeopardy.* By consenting to the provisional dismissal, the accused waived his right to the defense of double jeopardy.

When is the 2nd offense charged the same as the 1st offense?- The test now is :

whether one offense is identical with the other or whether it is an attempt or frustration of the other or whether one offense necessarily includes or is necessarily included in the other

- What this test shows is that identity of the offenses does not require one-to-one correspondence between the facts and law involved in the 2 changes. It is necessary; however, that one offense is completely included in the other.

What is the rule on “supervening facts”?- Where after the 1st prosecution a new fact supervenes for which the defendant is responsible, which changes the character of the offense and together with the facts existing at the time, constitute a new and distinct offense, the accused cannot be said to be in 2nd jeopardy if indicted for a new offense.- However, added the qualification that where the exact nature of the injury could have been discovered, but was not, because of the incompetence of the physician, the subsequent discovery of the real extent of the injury would not be a supervening fact which could warrant the application of the Melo doctrine.

* A judgment in a criminal case once final cannot be reopened.* A judgment of acquittal is immediately final.* But for a dismissal to terminate a case, it must be final. A mere verbal dismissal is not final until written and signed by the judge.* A judgment of conviction is final when the period for appeal has lapsed or when the sentence has been totally or partially satisfied or when the defendant has expressly waived in writing his right to appeal or when he has applied for probation.

“Article III, Section 22. No ex post facto law or bill of attainder shall be enacted.”

Ex post facto law:1) Which makes an action done before the passing of the law and which was innocent when done criminal, and punishes such action; or2) Which aggravates a crime which makes it greater than when it was committed; or3) Which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed;4) Which 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 defendant5) Assumes to regulate civil rights and remedies but only in effect imposes a penalty or deprivation of a right which when done was lawful6) 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 proclamation of amnesty.

* Ex post facto clause prohibits only retrospective penal laws.

When is a law a penal law?- A law is penal when is prescribes a criminal penalty imposable in a criminal trial.- However, a law is also a penal law if it prescribes a burden equivalent to a criminal penalty even if such burden is imposed in an administrative proceeding.

Bill of attainder – is a legislative act which inflicts punishment without judicial trial

Essential elements of a bill of attainder:1) There must be a law;2) The law imposes a penal burden on a named individual or easily ascertainable members of a group;3) The penal burden is imposed directly by the law without judicial trial.

APRIL LYNN L. URSAL

constitutional law ii

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