REVIEWER: CONSTI 2, Atty.

Medina SECTION 1 HEIRARCHY OF RIGHTS Human rights > property rights Human rights Property rights not compensable Compensable imprescriptible prescriptible

Cases involving elected officials

Official has rights akin to the constitutional rights of an accused 1. Right to appear and defend himself in person or by counsel 2. Right to confront and cross-examine witnesses against him 3. Right to compel attendance of witnesses and production of documentary evidence 1. Notice of coverage and invitation to conference 2. Notice of acquisition *this may be incomplete. Cross-check with cases to be sure

DUE PROCESS observance of both substantive and procedural rights is equally guaranteed, whatever the source of such rights, be it the constitution, or a statute, or a rule of court Procedural due process____________________________________

Agrarian reform / compulsory acquisition

Due Process Requirements In Court 1. 2. 3. 4. Administrative Proceeding 1. Court or tribunal clothed with judicial power to hear and decide the case Jurisdiction must be lawfully acquired over the person/property Opportunity to be heard Judgment must be made in lawful hearing Right to a hearing, which includes the right to present ones case and submit evidence in support thereof Tribunal must consider the evidence presented Decision must have something to support itself Evidence must be substantial Decision must be based on evidence presented at the hearing Tribunal must act on its own consideration, and not simply accept the views of a subordinate Decision should be rendered in such manner that parties can know the issues involved, as well as the reasons for the decision defendants informed in writing of nature and cause of accusations against them right to answer charges w/ assistance of counsel, if desired informed of evidence against them right to adduce evidence on their own behalf evidence duly considered by designated school authority Property is located in district Purpose of litigation is to subject property to obligation fixed on it by mortgage Court takes the property into its custody Notice of w/c particular acts or omissions for which dismissal is sought Subsequent notice of employers decision to dismiss

When court fails to acquire jurisdiction over the owner due to his failure to appear, it may still acquire jurisdiction over the property. However, relief must be confined to the object and court cannot render personal judgment over the owner Notice: may be actual or constructive (publication, mailing) Hearing: not actual hearing but opportunity to be heard Void for vagueness: perfectly vague, cannot be saved by saving clause or construction Lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application Overbreadth Doctrine: a government purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms
*There is a decision w/c says that overbreadth & vagueness are only applicable in free speech cases but not criminal cases. But Fr. B says in green book that only overbreadth should be limited to free speech cases

2. 3. 4. 5. 6.

7.

Legislative Rule Designed to implement a primary legislation Requires PUBLICATION, HEARING Interpretative Rule Merely a guideline of admin agency charged with enforcing it No pub or hearing necessary Quasi-legislative / Rulemaking powers Includes the ff. Delegated legislation Contingent legislation Interpretative rule Quasi-judicial / Administrative adjudicatory powers Power of agency to adjudicate rights before it Power to hear & determine questions of fact

Disciplinary Sanctions in 1. Academic Proceedings

*such cases may be summary, there is no right to 2. cross-examination

3. 4. 5. Jurisdiction over property 1. 2.

Fixing rates is quasi-judicial, and hence requires prior hearing, but provisional increase may be allowed Academic Freedom 1. Who may teach 2. What may be taught 3. How it shall be taught 4. Who may be admitted to study Irregularities in procedure, especially in criminal cases, may be sufficient violations of due process to annul a decision Substantive Due Process___________________________________ Police Power: presumption is validity. The judiciary should not set aside legislative action when there is no clear invasion of personal or property rights Requisites (lawful subject + valid means) 1. The interests of the public generally, as distinguished from those of a particular class, require such interference 2. The means are reasonably necessary to achieve the purpose, and are not unduly oppressive upon individuals

3. Dismissal of employees (Two written notices) 1.

2.

*also opportunity to be heard?

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State may prohibit structures offensive to sight, but not to the point that it constitutes confiscation Other Due Process Enumerations Standards of Due process 1. 2. 3. 4. 5. Responsiveness to the supremacy of reason Obedience to the dictates of justice Arbitrariness is rule out Unfairness is avoided Must not outrun the bounds of reason and result in sheer oppression Need for expeditious action (nuisance per se) Conclusive presumption (based on experience) Inherently pernicious (porn, contaminated meat, narcotics) Filthy restaurants Bawdy houses Not contravene the constitution or any statute Not unfair or oppressive Not partial or discriminatory Does not prohibit, but may regulate trade General and consistent with public policy Reasonable Legitimate govt fcns Preservation of the state Public health Welfare Public morals

Some valid exemptions from 1. notice and hearing 2. 3. 4. 5. Requisites for a valid ordinance 1. 2. 3. 4. 5. 6. Regulation of a profession is 1. proper when it affects the ff. 2. 3. 4. 5.

Private Property may be confiscated if it was used in an offense, even if owner had no knowledge The practice of a profession is equivalent to a property right License (i.e. to bear firearms) is not a property right Equal Protection__________________________________________ Reasonable Classification 1. Rests on SUBSTANTIAL DISTINCTION 2. GERMANE to the purpose of the law 3. Must not just apply to EXISTING CONDTNS 4. APPLIES EQUALLY to all members of the same class Citizenship is a valid classification So is gender (i.e. Goesart v Cleary) EPC also REQUIRES equal treatment of persons similarly situated Anonymity of complainants in cases before ombudsman is based on valid distinction (and is also specifically provided for in consti) Broadcast media may be treated differently due to PERVASIVENESS Election to the position of congressman is not a reasonable classification in criminal cases to justify release A show of clear and intentional discrimination by authorities constitutes violation, but prosecution has discretion on who it chooses to prosecute EQUAL RANK equal pay for equal work A law that FAILS TO CLASSIFY when there are substantial differences is also a violation

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SECTION 2 Valid Warrant_____________________________________________ Requisites 1. Issued upon PROBABLE CAUSE 2. Determined by a judge personally 3. After examining under oath/affirmation of a complainant & witnesses 4. Particular description Probable cause: things/circumstances/actions that will warrant a reasonable prudent man to act In 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 For search: such facts and circumstances to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched John Doe warrants are void, unless they contain a personal description which will enable the arresting officer to identify the accused Unlike proof of PC for arrest, PC for a search need not point to a specific offender Search warrant will not issue except upon PC in connection with 1 specific offense. EXCEPTION: when the illegal activity consists of a pattern (i.e. unauthorized banking) PC for issuing warrant Judicial w/n to issue warrant preliminary examination PC for prelim investigation proper executive (fiscal) w/n to file an information RTC judges are prohibited from conducting prelim inv proper Fruit of the Poisonous Tree Doctrine: Things searched through unreasonable search shall be inadmissible (overturned the Moncado ruling). Seizure shall be limited to things which bear a direct relation to the offense Objects seized need not be property of person whom the search warrant is directed against Before a criminal action is filed, any court may issue a warrant. After the filing, the court w/ jurisdiction has the primary authority to issue, but other court may still issue warrants in special cases. Particularity of description_________________________________ SW should particularly describe: 1. The place to be searched and 2. The things to be seized Should be as specific as circumstances will allow, but law does not require that the things be described in precise and minute details Place to be searched cannot be changed, enlarged, nor amplified by the police Errors on the warrant do not invalidate it (i.e. wrong name, but was positively identified to be the person referred to, typographical error in stating the address, etc) HOWEVER, what is material in determining the validity of the warrant is the place stated in the warrant itself, not the place the applicant had in their thoughts Warrantless search and seizure_____________________________ The right against unreasonable searches & seizures is personal and may be invoked only by the injured party Checkpoints: valid during special circumstances, if limited to a visual inspection and vehicle occupants are not subjected to a body search. HOWEVER, extensive search allowed if there is PC Areal target zonings / saturation drives: not illegal per se but their conduct should be governed by the bill of rights When there is enough time to obtain a warrant, a warrantless search/seizure will usually be invalidated Exceptions may be made in special situations, such as during the chaos of a rebellion Students are placed under temporary custody of the state as schoolmaster so a greater degree of supervision and control is exercised over them than adults. Thus, drug testing is allowed. Exemptions to warrant requirement 1. Incident to a lawful arrest (the search FOLLOWS the arrest) 2. Moving vehicle 3. Waiver 4. Plain view 5. Customs 6. Other exigent circumstances Search incidental to lawful arrest Person the individual arrested Things evidence or fruits of the crime Place that w/c is under IMMEDIATE CONTROL of the person arrested Time w/in the time of the commission of the crime

PC must be based on a conclusion of fact, not conclusion of law (a determination w/c is the judges prerogative after trial) Personal Examination Requirement Search Warrant (valid for 10 days) Arrest Warrant (report should be made after 10 days, but warrant will still be considered standing) Personally ask searching questions and answers If court has prosecutor, judge has 2 options 1. Issue based on fiscal certification AND records (records necessary bec. Determination should be made personally by the judge) 2. Ask for further evidence / personally examine witnesses Otherwise, personal examination

If WA is issued on certification ONLY, then it is VOID Commissioner of Immigration may issue WA, but only upon final judgment in deportation cases, NOT for investigation purposes The oath must be based on PERSONAL KNOWLEDGE of applicant or his witnesses. The test: whether it has been drawn in such a manner that perjury could be charged Reticent witnesses: yes/no questions may be used

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Search of a moving vehicle Justified bec the vehicle can be moved quickly out of the jurisdiction If a car is already impounded, then warrant is needed bec. the car is no longer movable Requisites of a valid waiver (whether express or implied, must be made in a CLEAR & UNEQUIVOCAL MANNER) 1. Rights exists 2. Person has actual or constructive knowledge of the right 3. Person had actual intention to relinquish right Mere acquiescence should not be considered as a waiver Plain View Doctrine 1. Prohibited goods 2. In plain view 3. Inadvertent discovery 4. Person has a right to be in the position w/c affords him the plain view May also be plain smell or plain touch, or anything that is open to the senses Means that there is no further search Customs searches Airports, piers, as well as land borders Customs officials have right to search w/out a warrant over all things w/in their jurisdiction (w/in the implementation of customs laws) Search, as constitutionally defined, only applies when there is a REASONABLE EXPECTATION OF PRIVACY What is reasonable? Depends on the facts and circumstances of each case (i.e. Veronia v Acton) Stop and frisk a limited search of the outer clothing to reveal weapons Requires: 1. Unusual conducts which leads to belief that crim activity may be afoot and person is armed & dangerous 2. In course of investigation, officer identifies self as policeman and makes reasonable inquiries 3. Reasonable fear for self and others safety is not dispelled Other special circumstances: Probable Cause + Exigent circumstances For whatever nature and whatever purpose___________________ CONSTRUCTIVE SEARCH usually court order of Subpoena Duces Tecum; order to produce documents not really a warrant, but the court order serves the purpose of a warrant PC: relevance to the proceeding ADMINISTRATIVE SEARCHES Exercise of police power Inspection (schools by DECS, hospitals by DOH, etc) Inspector will not have warrant, but you can ask for one and he will have to provide PC: passage of time, condtn of bldg, nature/condtn of area Warrantless Arrest________________________________________ Defined as the taking into custody of a person for the commission of an offense (otherwise, it is merely a DETENTION) Minimum requirement: PC, determined not by a judge but by the arresting officer

1. IN FLAGRANTE DELICTO In his presence, person to be arrested (a) has actually committed (b) is committing (c) or is about to commit an offense Even if you do not see the actual crime, it is still considered in your presence if you see the effects i.e. buy-bust operation CONTINUING CRIME: arrest may be effected even while suspect is sleeping Compare MENGOTE and MALMSTEDT 2. RULE 5B Elements: 1. Offense has just been committed 2. Personal knowledge of facts 3. Indicating that person to be arrested committed it If officer mistakenly thought that an offense had been committed, but none actually was, then this will not apply Even if arrest was made on basis of eyewitness testimony, it will not suffice as this is not PK, but hearsay Take note of: Alvario, Acol, Cadua 3. ESCAPED PRISONER arrest may be made at any time Special situation: arrest conducted by bailor When to question validity: In all cases, validity of arrest must be questioned before entering plea, otherwise it is deemed to have been waived. However, bail is not considered as waiver Unauthorized presence Plain view inadmissible Flagrante delicto admissible

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SECTION 3 EXCLUSIONARY RULE When may privacy of communication be violated? 1. Lawful order of the court 2. As provided by law Exceptions from fruit of the poisonous tree 1. If there is a source independent of the tainted source 2. When it is inevitable that the evidence will be found anyway 3. Arrest due to an invalid warrant, BUT police acted in good faith (US decision, not yet applied in Phil) Exclusionary rule also applies to evidenced procured out of the inadmissible evidence Under this rule, the evidence may not be used against the accused, but may be used against the police officer Does taping/recording a lecture constitute wiretapping if done w/out consent of lecturer? The law covers private communications, not public speech

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SECTION 4 Section 4 prohibits 2 things: prior restraint and subsequent punishment Prior restraint____________________________________________ otherwise known as censorship PRESUMPTION OF INVALIDITY Is allowed: 1. When at war 2. Obscenity 3. Incitements to violence or to overthrow the govt Requisites of valid prior submission 1. Burden of proof is on censor 2. Restraint prior to judicial review limited to a. Preservation of status quo b. Is for shortest time possible 3. Prompt final judicial determination must be assured
*only judicial determination justifies a final restraint

Prohibition of commentary during plebiscite invalid. No candidates who will gain undue advantage Exit polls are valid forms of speech Prohibition of elections surveys is invalid. COMELEC is limited to regulation COMMERCIAL SPEECH sole purpose is to propose a commercial transaction Central Hudson Test (Requirements for protection) 1. not false, misleading, or promote illegal acts 2. regulation must serve SUBSTANTIAL govt interest 3. regulation directly advances that interest 4. regulation is not overbroad Libel____________________________________________________ Definition: public and malicious imputation of a crime, or of a vice/defect, real or imaginary, or any act, omission, condition, status, circumstances tending to cause the dishonor, discredit, or contempt of a natural OR JURIDICAL person, or to blacken the memory of one who is dead Requirements 1. allegation if discreditable act or condition 2. publication 3. identity of person defamed is disclosed 4. malice Private Person Every defamatory imputation is presume malicious, even If true, if no good intention and justifiable motive for making it is shown, except in cases of: 1. private communication in performance of legal, moral, or security duty 2. fair and true report, made in good faith, w/out any comments or remarks Public figure ACTUAL MALICE STANDARD: no damages from defamation resulting from official acts unless proven that statement was made with actual malice (1.knowledge that it was false, or 2. Reckless disregard for w/n it was true or false) may apply to private individual involved in matters of public concern applies in: official acts, fitness for office, criticisms

Requirement for censorship of movies (Freedman doctrine) 1. Burden of proof is on censor 2. Censor must, w/in limited pd of time, either go to court or issue a license 3. Prompt judicial determination must be assured Different rules may apply to TV due to pervasiveness Free speech tests for prior restraint Content-based Censorship Presumed invalid Test used is mainly CPD Interest must not only be compelling, but substantial Time, place, manner Obrien test

Content-Neutral

Subsequent Punishment___________________________________ Dangerous Tendency Test requires only rational connection between the speech and evil avoided Clear and Present Danger Test words used are of nature to create CPD which state has interest to prevent a question of proximity and degree preferred, as long as it is applicable Balancing of Interest Test not all situations are measurable in proximity and degree weigh between freedom of speech and interest sought to be protected it more impt Brandenburg: prohibition of not just mere advocacy, but the kind of advocacy that will actually lead to CPD OBrien Test a govt regulation is justified if: 1. w/in constitutional power of the govt 2. furthers a substantial govt interest 3. the interest is unrelated to suppression of free speech 4. regulation is no greater than necessary to further interest ELECTION COMELEC time a valid regulation because it promotes equality for poor candidates Prohibition on mobile places invalid because it inhibits private property such as a car

Public Figure a person who by his profession, accomplishments, fame, or mode of living has become a public personage in other words, a celebrity. Anyone who has arrived at a position where public attention is focused on him as a person If a public person is attacked for acts in his private life, then the presumption of malice applies Privileged Communication not actionable even if there is defamatory statement even if there is bad faith two types: Absolute Qualified (may be overcome by showing of malice) Congress Fair and true report Pleadings Private communication Fair commentary Obscenity_______________________________________________ Hicklin Rule: w/n the tendency of the matter is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands such publications may fall Susceptible persons test Isolated passages test Note: was formulated by the great LORD COCKBURN (green book, p.299)

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Roth Test: w/n to an average person, applying contemporary community standards, the dominant theme of the material as a whole applies to prurient interest Memoirs Test 1. Dominant theme of the material appeals to prurient interest 2. Patently offensive to community standards due to representation of sexual matters 3. Material is utterly without redeeming social value Miller Test 1. Roth test 2. Work depicts in patently offensive way, sexual conduct specifically defined by law 3. The work taken as a whole lacks serious literary, artistic, political, or scientific value Indecency May be offensive to morality, but not necessarily obscene (i.e. FCC vs. Pacifica) Protected, but may be subject to regulation depending on circumstances *note: in libel or obscenity, the free speech tests are inapplicable because there is no need to weigh competing values Assembly and petition_____________________________________ Rules: applicants should inform the licensing authority of the date, place, and time. If private place, only consent of the owner or possessor is required May be regulated: when there is showing of CPD or SUBSTANTIVE EVIL to legitimate public interest Private speech IS NOT government speech Public forum vs monument in park Principles are N/A to govt speech

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SEC. 5

SEC. 6 LIBERTY OF ABODE

Free exercise of religion___________________________________ General rule: restrictions should be justified by a clear and present danger to a government interest Smith Rule: a rule that burdens religious practice need not be justified by a compelling government interest if 1. Neutral on its face 2. General in applicability Wisconsin v Yoder: a regulation neutral on its face may nonetheless offend the constitution if it unduly burdens the free exercise of religion Take note: even if a restriction is not neutral and general, it may still be justified by compelling state interest Compelling state interest, from a benevolent neutrality stance The solicitor general should do the ff: 1. Examine sincerity & centrality of claimed religious belief and practice 2. Present evidence on the states compelling interest to override religious belief and practice 3. Show that the means the state adopts is the least restrictive Two aspects of freedom of religion 1. Freedom to act may be regulated 2. Freedom to believe absolute Free exercise clause usually involves situations that involve COERCION (when state inhibits or restrains). Otherwise, the nonestablishment clause applies Non-establishment clause__________________________________ Prohibits the state from passing laws which aid one religion, aid all religions, or prefer one religion over another Schempp rule 1. Secular legislative purpose 2. Primary effect that neither inhibits/advances religion 3-part Lemon v Kurtzman test (supplemented Schempp) 1. Challenged govt action has a secular purpose 2. Does not have primary effect of advancing/inhibiting religion 3. Does not foster excessive entanglement with religion Religious expression does not violate non-establishment if: 1. Purely private 2. Occurs in a traditional or designated public forum, publicly announced, and open to all on equal terms Truth of religious belief state may not inquire (US v Ballard) Sincerity of belief state MAY inquire (Escritor) Religious political party is prohibited by the consti. But the running of a religious leader is not religious includes charitable. But charitable des not include religious Reading of bible passages in school may be allowed if not for religious purposes, such as historical or literary Advances Religion also means endorsing a religion Transferred endorsement test: by allowing certain religious actions, it is as if government is already endorsing Certain Philippines practices are religious, but have already become part of our culture. Hence, they are not considered violations

RIGHT Liberty of abode Right to travel

IMPAIRMENT Lawful order of a court Basis of national security, public safety, and public health, as provided by law

Right to return to ones country does not exist in our consti. It exists under international human rights law. but it may be impaired, as long as the prohibition is not arbitrary. Hamletting Constitutionally: may only be done with court order Under international military law: soldier has duty to take civilians out of the line of fire The conflict between the two may be resolved by military necessities

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SEC. 9

Eminent Domain__________________________________________ Elements 1. Taking of private property 2. For public use 3. Just compensation Legislative determination Necessity Public use Compensation Valid? Yes Yes

Voluntary sales of other lands may be considered to determine value, but using the following factors; 1. Similarity of the lands 2. Time of the sale 3. Distane of the lands from each other SC may substitute its own valuation when the commissioners: 1. Used illegal principles 2. Disregarded a clear preponderance of evidence 3. Used improper manner of assesment

Yes, but only considered to be recommendatory *all of these may still be subjected to judicial review (i.e. for grave abuse of discretion amounting to lack or excess of jurisdiction) Requisites for LGUs (OPJV) 1. Ordinance authorizing local chief executive 2. Purpose is public use, public welfare, benefit of poor and landless 3. Just compensation 4. Valid and definite offer previously made and rejected Procedure for Agrarian Reform 1. DBP makes initial value assessment 2. DAR makes offer 3. If rejected, summary proceedings where PARAD or DARAB fixes price 4. Landowner may go to RTC, as special agrarian court, if the price is disputed Taking__________________________________________________ 2 general elements 1. Entrance and occupation 2. Devoting for public purpose Requisites for taking under expropriation (EMCEP) 1. Entry into property 2. Entrance more than momentary 3. Done under color of authority 4. Exclude and deprive owner of all rights 5. Public use Actual physical taking is not necessary for property to be considered taken. Ex. Where there is impairment to the extent that property cannot be used as one would normally use it Expropriation is generally only used as a last resort the govt should first ask the owner if he wishes to sell the property Public use_______________________________________________ Expanded definition of public use: everything that confers public advantage, convenience, or benefit Just compensation________________________________________ FORMULA:
FMV + CONSEQUENTIAL DAMAGE CONSEQUENTIAL BENEFITS

Fair Market Value: should be present, not speculative or future value 1. Acquisition costs 2. Value of similar properties 3. Actual and potential uses 4. And particularly for land: size, shape, location, and tax declaration Who determines value? Commissioner makes a recommendation to a court. It is judge who ultimately determines

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SEC. 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 AFFOD 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 AND REHABILITATION OF VICTIMS OF TORTURE OR SIMILAR PRACTICES, AND THEIR FAMILIES

2.

Mayor, unless the accused approaches him as counselor or adviser 3. Barangay captain 4. Any other whose interest may be adverse to that of the accused Preferably of the detainees own choice the choice of a lawyer by a person is not exclusive as to preclude other equally competent and independent attorneys from handling the defense The right to be informed More than what is shown on TV where the police routinely reads the rights from a notecard 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 following are also prohibited: 1. Torture, force, violence, threat, intimidation, other means which vitiate free will 2. Secret detention places, solitary, incommunicado, other similar forms of detention When are they available?_________________________________

What rights are available?_________________________________ Available Rights (Miranda) 1. Person in custody must be informed at the outset in clear and unequivocal terms that he has a right to remain silent 2. He must be told that anything he says can and will be used against him in court 3. Clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during the interrogation. He does not have to ask for a lawyer. 4. He should be warned that not only has he 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 person consents to answer questions without counsel, the moment he asks for one, the interrogation must cease until one is present 6. No evidence obtained in violation of these rights can be used against him Take Note: RA. 7438 has extended the guarantee to situations in which an individual has not been formally arrested but has merely been invited for questioning. There is a statutory guarantee broader than the constitutional. People v Mahinay has laid down a new procedure that has updated the guidelines in Miranda (see primer p. 130 for the complete list) Three rights are made available by section 12(1) 1. Right to remain silent 2. Right to counsel 3. Right to be informed of such rights The right to remain silent Only an accused has the right A person who is not accused may assume the stance of silence only when asked an incriminating question Under section 12, however, a person under investigation has the right to refuse to answer any question. His silence, moreover, may not be used against him The right to counsel Is a right to counsel throughout the investigation I am here to assist you because I have been summoned to assist you has been found to be an inadequate offer of assistance If the accused never raises an objection to counsel given to him, he is deemed to have been properly counseled competent and independent Examples of non-impartial counsel 1. Special counsel, public or private prosecutor, counsel of the police, municipal atty whose interest is adverse to that of the accused What is custodial investigation? The time when the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out the process of interrogations that lends itself to eliciting incriminating statements (Escobedo) 3 phases of the criminal process: investigation prior to filing of charges, preliminary investigation and examination after charges have been filed, and trial. Miranda rights and section 12(1) rights were conceived for the first phase Outside of this, section 12(1) no longer applies, but sections 14 and 17 come into play instead Extrajudicial confession before a judge is deemed voluntary even without assistance of counsel However, even after filing of charges, section 12 still applies if police attempt to elicit confessions When do they cease to be available?_________________________ When the rights do not apply Before govt investigators are involved Person undergoing audit, bec audit examiner is not a law enforcer Where a person presents himself to the police and in the process makes his admissions A spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby the accused admit having committed the crime (even when accused is already in custody) Confessions to a radio announcer Confession to mayor acting as confidante, not as law enforcer Confession to private individual Other investigations where sec 12 is N/A Paraffin test, because it is not communicative or testimonial Police line-up, unless there is a move to elicit admissions or confessions. But a person already under custodial investigation who is placed in a police line-up is entitled to section 12 rights. Rights may be lost by neglect: where the defense fails to raise objections to the admissibility of evidence immediately, as required by rule 132, S36, the accused is deemed to have waived his right Waiver must be made in writing and in presence of counsel In localities where there are no lawyers, state must bring the accused to a place where there is one or bring counsel to the place where the accused is held The waiver must be in language which clearly manifests the desire to waive the right.

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Even if the confession is gospel truth, if it was made without assistance of counsel, it is inadmissible, regardless of the absence of coercion or even if it had been voluntarily given The same applies to waiver of right to counsel not made in presence of counsel Protection covers admissions and confessions Admission: act, declaration, or omission of party as to a relevant fact Confession: declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein Non-explicit onfessions or admissions are protected Participation in a re-enactment Photos of a re-enactment Signature of accused on receipt of seized property Signature in booking and arrest report, however, is not an admission but only of the fact of booking and arrest Requisites of a valid extrajudicial confession 1. Voluntary 2. Made with assistance of competent and independent counsel 3. Express 4. In writing 5. Signed, or if accused is illiterate, thumb-marked Threats/promises which make confession involuntary: 1. Violence 2. Intimidation 3. Promise of reward or leniency

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SECTION 13. ALL PERSONS, EXCEPT THOSE CHARGED WITH OFFENSES PUNISHABLE BY RECLUSION PERPETUA WHEN VIDENCE 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.

That accused was a fugitive from justice when arrested Question of excessiveness of bail should be raised during the application for bail Soldiers under court-martial do not have right to bail: 1. Disciplinary structure of the military 2. Soldiers are allowed to bear arms and can therefore cause havoc 3. Tradition has recognized the non-existence of the right

Bail is either a matter of right or discretion RIGHT DISCRETION Offense charged Upon conviction by RTC, of offense is not punishable NOT punishable by RP or life by death, RP, or If court imposed a penalty between 6life 20 years, except when any enumerated circumstances under par. Even if capital crime, there is 3, sec. 5, rule 114 right to bail when Enumerated circumstances: evidence of guilt o Recidivist, habitual is not strong delinquent, reiteracion o Previously escaped, evaded sentence, violated bail w/out valid justification o Circumstance indicate probability of flight o Undue risk that accused might commit another crime during the appeal Bail cannot be posted before custody has been acquired by (1) lawful arrest or (2)voluntary surrender. Custody may be constructive A person who has not been apprehended or submitted himself to jurisdiction cannot apply for bail Principles governing bail: 1. High enough to assure presence of defendant when required, but no higher than necessary for this purpose 2. Good of the public as well as the accused 3. The need for a tie to the jurisdiction and the right to freedom from unnecessary restraint before conviction under circumstances surrounding each particular accused Duties of judge in bail application 1. Notify prosecutor of the hearing or require him to submit his recommendation 2. Conduct a hearing, regardless of w/n prosecution refuses to present evidence to show that guilt is strong, to enable the court to exercise jurisdiction 3. Decide whether evidence of guilt is strong based on summary of evidence 4. Discharge, if evidence of guilt is not strong, upon approval of bail bond When bail is discretionary (i.e. capital offense) 1. Hearing is required to determine existence of strong evidence 2. Summary of evidence is required basis for formulating conclusion on strength of evidence to indicate guilt Burden of proof is on prosecution to show strong evidence of guilt Sec 6 Rule 114, revised rules of CRIMPRO Judge shall fix reasonable amount of bail considering primarily but not limited to: Financial ability of accused to give bail Forfeiture of other bonds Pendency of other cases in which the accused is under bond Penalty for the offense charged Probability of the accused appearing for trial Weight of the evidence Age and health of the accused Nature and circumstances of the offense Character and reputation of the accused

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SEC. 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 OUSEL, 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.

Compulsory process______________________________________ 2-fold objectives 1. to secure attendance of witnesses 2. to secure production of evidence on behalf of the accused what if witness already living abroad? The court has no jurisdiction (this is accdng to sir) Right to cross-examine____________________________________ 2-fold purpose 1. afford accused an opportunity to test the testimony of the witness 2. allow the judge to observe the deportment of the witness Right is only available during trial. Not during custodial investigation Difficulty in producing witness who had previously testified: previous testimony may be made admissible as evidence. Distinct exception to the hearsay rule, for orderly and expeditious administration of justice Death of witness: if cross was actually commenced, but for lack of time, was not completed, and witness in the meantime died before cross could be resumed, testimony already given is admissible Right may be waived expressly or impliedly. If a witness dies after party postpones their cross-examination, testimony on direct examination will still be admissible Exemptions 1. dying declarations 2. trial in absentia Trial in absentia__________________________________________ Requisites of valid trial in absentia 1. accused has been arraigned 2. duly notified of the trial 3. failure to appear is unjustified Accused may waive his presence at criminal proceedings. Except at stages where identification of his person by the prosecution witnesses is necessary Moreover: accused 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. If admission is vague, accused may be required to appear again Right to be informed_______________________________________ What must information contain? 1. Name of accused 2. Designation given to the offense by statute 3. Acts and omissions so complained which constitute the offense 4. Name of offended party 5. Approximate time and date of commission of offense 6. Place where offense was commiteed Other notes if certain facts are not alleged in the info, they may not be taken as QUALIFYING circumstances. However, they may bay used as AGGRAVATING multiple informations for illegal recruitment cannot be consolidated to convict for illegal recruitment in large scale separate informations may not be complexed although the actual date is not necessary, it should be AS NEAR AS POSSIBLE Right to impartial trial______________________________________ Judge should not just be actually impartial, he should also appear to be impartial

Reasonable Doubt: that doubt engendered by an investigation of the whole proof, and an inability after such investigation to let the mind upon the certainty of guilt. Absolute certainty of guilt is not demanded to convict But a moral certainty is required as to every proposition of proof requisite to constitute the offense General elements of right to be heard 1. 1.right to be present at trial 2. Right to counsel 3. Right to impartial judge 4. Right of confrontation 5. Right to compulsory process Pre-arraignment duties of trial judge 1. Inform accused that he has right to counsel 2. Ask whether accused desires counsel 3. Give him reasonable time to procure counsel 4. If accused is unable to employ one, court must assign counsel de officio Right to speedy, impartial, public trial________________________ When is right to speedy trial violated: 1. Proceeding is attended by vexatious, capricious, and oppressive delays 2. Unjustified postponement of the trial are asked for an dsecured 3. Without cause or justified motive, a long period of time is allowed to elapse without the party having his case tried Factors considered in determining delay Length of delay Reason for delay Effort of defendant to assert his right Prejudice caused to the defendant Includes right to prompt final judgment Judge must not only be impartial, he must appear to be impartial Clarificatory questions may be asked, but privilege must be sparingly and judiciously used Judge may examine or cross, but only to clarify, not to build a case Judge may intervene in evidence presentation to expedite, prevent waste of time Impartial trial is not incompatible with free press. Impartial judge is not an out of touch hermit. Our judges are well trained. When is a trial public? When anyone interested in observing the manner a judge conducts the proceedings in his courtroom may do so. There is to be no ban on such attendance. His being a stranger to the litigants is of no moment. A recognized exception: when evidence to be presented in the proceeding may be offensive to decency or morals. But even in these instances the accused should be allowed at least to have his friends, relatives, and counsel present, no matter with what offense he may be charged.

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SEC. 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

SEC. 16. ALL PERSONS SHALL HAVE THE RIGHT TO A SPEEDY DISPOSITION OF THEIR CASES BEFORE ALL JUDICIAL, QUASI-JUDICIAL, OR ADMINISTRATIVE BODIES.

What is Habeas Corpus____________________________________ Definition: writ directed to the person detaining another, commanding him to 1. Produce the body of the prisoner at a designated time and place, 2. With the day and cause of his caption and detention 3. To do, submit to, and receive whatever the court or judge awarding the writ shall consider in that behalf. Esssential object & purpose is to inquire into all manner of involuntary restraint, and to relieve a person therefrom if such is illegal Requires actual deprivation of personal liberty. However, this does not refer to physical compulsion alone. Freedom may be lost to: External moral compulsion Founded or groundless fear Erroneous belief in being harmed if someone is not blindly obeyed Any other psychological element that curtails mental faculty of choice or free will Limitations on suspension_________________________________ Not exclusive to the executive Suspension is for period not exceeding 60 days Congress may revoke the suspension Congress may also extend, upon initiative of the president The SC, upon initiative of any citizen, may review the sufficiency of factual basis of the suspension. SC must promulgate decision w/in 30 days from filing. Requisites: 1. There must be actual invasion or rebellion 2. The public safety must require it Applies only to those charged with (a) rebellion, (b) offenses connected to invasion It is not enough that the crimes fall under the enumeration For a person to lose privilege, he must be judicially charged in court Any person thus arrested or detained shall be set free if not charged within 3 days The suspension of the writ DOES NOT suspend right to bail Judicial Review___________________________________________ Broader extent than previous consti Not limited to GADLEJ May also review factual basis Habeas Corpus is not proper mode to question conditions of confinement. Restrictions inherent in detention are not punishment. Once charges have been filed in court, habeas corpus is no longer available Other writs_______________________________________________ Writ of amparo: if detention is denied by the authorities, they are compelLed to explain the steps they have taken to find missing persons location and to LOOK FOR HIM Writ of habeas data Involves the militarys order of battle Court: produce the list. Explain why certain person is on that list.

Speedy disposition of cases________________________________ Speaks of cases. Therefore includes periods before, during, and after trial (broader than sec. 14 which only involves trial) Applies to civil, crim, and admin cases. Not limited to the accused, but extends to all parties in all cases Includes all proceedings, including judicial and quasi-judicial Any party to a case may demand expeditious action on all official who are tasked with the administration of justice Speedy is a flexible concept. It is consistent with reasonable delay When violated Vexatious, capricious, or oppressive delays Unjustified postponements Without cause or justifiable motive a long period of time is allowed to elapse without having the case tried Balancing Test (factors to be considered) 1. Length of the delay 2. Reason for delay 3. Assertion or failure to assert the right 4. Prejudice caused by delay Remedy: dismissal through mandamus

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SEC. 17. NO PERSON SHALL BE COMPELLED TO BE A WITNESS AGAINST HIMSELF

Right against self-incrimination_____________________________ Main Purpose: prohibit testimonial evidence by oral examination in order to extort unwilling confessions from prisoners implicating them in the commission of a crime Basis: 1. Public policy otherwise, accused would be placed under great temptation to commit perjury 2. Humanity to prevent extorting of confessions by duress Guide in interpretation: not the probability of the evidence, but the capability of abuse Extent___________________________________________________ Includes the following Compulsion to produce a document Compulsion to produce a specimen of ones own handwriting An ocular inspection of ones body is allowed, even extending to an inspection of a womans body via a pregnancy test Signing receipt of seized goods is equivalent to self-incrimination and should therefore be made in presence of counsel Applies also to admin proceedings partaking in nature of, or analogous to, criminal proceeding. Including the ff.: Proceeding for forfeiture of property under Anti-Graft Law Malpractice investigation for revocation of medical license Ordinary witness: claim privilege when an incriminating question is asked Accused: may altogether refuse to take the stand or answer any and all questions The lawyer-client privilege may also apply (see Regala v Sandiganbayan for more in-depth explanation) What is not protected______________________________________ Prohibition of the use of physical or moral compulsion, to extort communications from him. NOT an exclusion of his body as evidence, when it may be material Thus, the ff. are allowed: Substance from body of the defendant Paraffin test Taking a picture of the accused Admission into evidence of persons wallet, its contents, and some keys Mechanical evidence is not protected Creative evidence is protected

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ARTICLE 4 CITIZENSHIP SEC. 1. THE FOLLOWING ARE CITIZENS OF THE PHILIPPINES: 1. THOSE WHO ARE CITIZENS OF THE PHILIPPINES AT THE TIME OF THE ADOPTION OF THIS CONSTITUTION 2. THOSE WHOSE FATHERS OR MOTHERS ARE CITIZENS OF THE PHILIPPINES 3. THOSE BORN BEFORE JAN. 17, 1973, OF FILIPINO MOTHERS, WHO ELECT PHILIPPINE CITIZENSHIP UPON REACHING THE AGE OF MAJORITY 4. THOSE WHO ARE NATURALIZED IN ACCORDANCE WITH LAW SEC. 2. NATURAL-BORN CITIZENS ARE THOSE WHO ARE CITIZENS OF THE PHILIPPINES FROM BIRTH WITHOUT HAVING TO PERFORM ANY ACT TO ACQUIRE OR PERFECT THEIR PHILIPPINE CITIZENSHIP. THOSE WHO ELECT PHILIPPINE CITIZENSHIP IN ACCORDANCE WITH PARAGRAPH 3 SECTION 1 HEREOF SHALL BE DEEMED NATURAL BORN CITIZENS.

before authorized official, prior or simultaneous to filing certificate of candidacy Dual-allegiance: larger and more threatening than double citizenship. Shown by acts indicating loyalty to another country Dual citizenship: seldom intentional, often not chosen but imposed on persons by facts outside their control Dual citizenship has been allowed by congress Other matters: see Derivative Naturalization citizenship may not be collaterally attacked

Citizenship_______________________________________________ Why is citizenship important? Exercise of political rights (vote, hold public office, petition for redress of grievances) Ways of possessing Philippine citizenship 1. Natural born 2. naturalization Philippines follows Jus Sanguinis: citizenship on basis of blood relationship However, there is nothing in the constitution to prevent congress from also adopting jus soli as supplement Naturalization is the legal act of adopting an alien and clothing him with the rights of a natural born citizen (however the constitution withholds certain rights from naturalized citizens) Res Judicata generally does not apply to naturalization proceedings Exception: 1. persons citizenship must be raised as material issue, in controversy where said person is a party 2. solicitor general or his representative took active part in the resolution thereof 3. the finding is affirmed by the SC Loss and reacquisition_____________________________________ Modes of losing citizenship 1. Naturalization to foreign country 2. Express renunciation 3. Subscribing to oath of allegiance to support the constitution or laws of another country Modes to reacquire Philippine citizenship 1. direct act of congress 2. naturalization 3. repatriation Repatriation is the reacquisition of lost citizenship. Hence, one who is repatriated regains former citizenship There are only two kinds of citizenship (natural-born and naturalized). Since one who is repatriated is not naturalized, he is considered natural-born Steps in repatriation 1. Filing of application 2. Action by committee 3. Taking of oath if application is approved Jacot v Dal: natural-born citizens who naturalized to foreign citizenship and then reacquired Philippine citizenship are required: 1. to take the oath of allegiance 2. for those seeking elective office, to additionally execute a personal and sworn renunciation of any and all foreign citizenship,

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ARTICLE 5 SUFFRAGE SECTION 1. SUFFRAGE MAY BE EXERCISED BY (a) ALL CITIZENS OF THE PHILIPPINES (b) NOT OTHERWISE DISQUALIFIED BY LAW, (c) WHO ARE AT LEAST 18 YEARS OF AGE, (d) AND WHO SHALL HAVE RESIDED IN THE PHILIPPINES FOR AT LEAST 1 YEAR AND IN THE PLACE WHEREIN THEY PROPOSE TO VOTE FOR AT LEAST 6 MONTHS IMMEDIATELY PRECEDING THE ELECTION. NO LITERACY, PROPERTY, OR OTHER SUBSTANTIVE REQUIREMENT SHALL BE IMPOSED ON THE EXERCISE OF SUFFRAGE SECTION 2. THE CONGRESS SHALL PROVIDE A SYSTEM FOR SECURING THE SECRECY AND SANCTITY OF THE BALLOT AS WELL AS A SYSTEM FOR ABSENTEE VOTING BY QUALIFIED FILIPINOS ABROAD. THE CONGRESS SHALL ALSO DESIGN A PROCEDURE FOR THE DISABLED AND THE ILITERATES TO VOTE WITHOUT THE ASSISTANCE OF OTHER PERSONS. UNTIL THEN, THEY SHALL BE ALLOWED TO VOTE UNDER EXISTING LAWS AND SUCH RULES S THE COMMISSION ON ELECTIONS MAY PROMULGATE TO PROTECT THE SECRECY OF THE BALLOT

Residency requirement____________________________________ Residence as used in election law is considered to mean domicile -qualification for voting. review Requisites for change of domicile 1. residence or bodily presence in the new locality 2. intention to remain there 3. intention to abandon the old domicile Presumption: ones domicile of origin remains his voting domicile until clearly abandoned for another Recognized limitations_____________________________________ Lewis v COMELEC presents an exception to the residency requirement. A law allows overseas Filipinos to vote even though they are not residents of the Philippines Obligation to register one of recognized procedural requirements that is considered valid exercise of police power to safeguard honest, orderly, peaceful elections Other matters____________________________________________ Consti > suffrage: citizens may not revise qualifications in consti merely by voting an unqualified candidate into office Macalintal v COMELEC affidavit in absentee voting does not indicate non-residence. Rather, it proves that they never abandoned their domicile in the country When running: must be ONLY Filipino When voting: may be dual citizen Swearing allegiance to RP does not automatically renunciation of foreign citizenship (accdg to sirs assistant) signify

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ART 13 SOCIAL JUSTICE AND HUMAN RIGHTS

ART. 14 EDUCATION SCIENCE AND TECHNOLOGY Academic freedom 1. what should be taught 2. how it should be taught 3. who may teach 4. who may be taught Discretion in giving of awards is included in academic freedom Due process in academic proceedings 1. defendants informed in writing of nature and cause of accusations against them 2. right to answer charges w/ assistance of counsel, if desired 3. informed of evidence against them 4. right to adduce evidence on their own behalf 5. evidence duly considered by designated school authority BP 232 recognizes right of student to continue his course up to graduation, except in cases of: 1. academic deficiency 2. violation of disciplinary regulations But there is no contract for school to remain open. Institutions may close down in the middle of students course of study Every citizen has a right to select a profession or course of study subject to fair, reasonable, and equitable admission and academic requirements state may thus impose regulations to the effect that after failing admission tests a certain number of times, one may forever be barred entry into the profession

SEC. 3 (labor)____________________________________________ Extends to all forms of labor: local, overseas, organized or not, public or private Right to strike Traditionally been denied to certain sectors Ex. Peace-keeping forces or firemen, due to nature of work SSS and public school teachers Definition of strike: any temporary stoppage of work due to labor disputes SEC. 4 (agrarian and land reform) ___________________________ Right to own the land: given only to farmers and regular farm workers, who are landless Non-regular farm workers: a just share in the fruits of production Generally, expropriation payment must be cash. However, due to special nature of agrarian reform, payment in instruments is acceptable (especially since govt. needs time to raise money) General rule: sale/transfer of rights of property covered by certificate of land title is void Exception: alienation in favor of government or hereditary succession Land reform is police AND eminent domain power 1. To the extents that it sets retention limits: police power 2. Taking of private lands for re-distribution: eminent domain power SEC. 7 (subsistence fishermen)_____________________________ Covers only SUBSISTENCE FISHERMEN (but Bernas says in green book that intent was to cover also other fishermen who moderately more affluent) Subsistence fishermen: catch is irreducible minimum for his livelihood Marginal fishermen: profit margin is barely sufficient to cover costs Preferential right is not absolute. State may impose regulations SEC. 9, 10 (urban land reform)______________________________ PD 1517 (Right of 1st refusal) 1. Legitimate tenants who have resided on the land for 10 years who have built their homes on land 2. Residents who continuously and legally occupied the land by contract for 10 years Evictions not prohibited, but should be done in just & humane manner Heirarchy of lands for socialized housing 1. Alienable lands of public domain 2. Unregistered/abandoned idle ands 3. Areas for Priority Development, Zonal Improvement Program sites, slum improvement and resettlement program sites which have not been acquired 4. Bagong Lipunan Improvement of Sites and Services (BLISS) which have not yet been acquired 5. Private lands SEC. 18 (CHR)____________________________________________ CHR only has investigatory, not adjudicatory powers Beyond this, will rely on DOJ which has prosecutor powers May not issue injunctions against HR violators Jurisdiction only on civil and political rights, as distinguished from less traditional social and economic rights However, powers may later be expanded by law

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