2nd Exam Consti2

8/19/2019 2nd Exam Consti2

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Freedom of Expression

Art. III, Sec.4 of 1987 Constitution

Section 4. No law shall be passed abridging the freedo of speech, of e!pression, or of the press, or the right of the people peaceabl" toasseble and petition the go#ernent for redress of grie#ances.

Scope of $reedo of %!pression&he scope of freedo of e!pression is onl" a#ailable in

discussion of atters affecting public interest. 'urel" pri#ate atters

are not co#ered and are not supposed to be guaranteed under freespeech. &he two coponents or eleents are( 1. 'rior restraint )norall" in the for of censorship*. $reedo fro subse+uent punishent ) in the for of

punishents.&here are two considerations when a regulation in a

for of subse+uent punishent is tested(a. Contentbased restrictionb. Contentneutral regulation

In content-based restriction, the usual tests would be( a. -angerous &endenc" &est

b. Clearand'resent -anger &estc. alancing of Interest &est

&hose are the three ost coon tests. &here are two testsentioned also in "our outline(

d. -irect Inciteent e. /ra#e but Iprobable -anger

1. -angerous tendenc"

♣ &he ephasis of the test is the nature of the

circustances under which speech is uttered, though thespeech per se a" not be dangerous.

♣ 0nder this test, if the speech restrained has a rational

tendenc" to create the danger apprehended, be it far orreote, go#ernent restriction would be allowed. Its notnecessar" to actuall" create the e#il, a ere tendenc"towards the e#il was enough.*. Clear and present danger

♣ &he +uestion in e#er" case is whether the words used are

used in such circustances and are of such a nature as tocreate a clear and present danger that the" will bring about

the substanti#e e#ils that Congress has a right to pre#ent. Itis a +uestion of pro!iit" and degree. 2Schenc3 #. 0nitedStates, *49 0S 47 191956

♣ &his rule re+uires that the danger created ust not onl"

be clear and present but also traceable to the idease!pressed /onales #. C:;%?5.

♣ &his test has been adopted b" the 'hilippine SC loc3,

stoc3 and barrel and is the test ost applied to cases re(freedo of e!pression.>. /ra#ebutiprobable danger

♣ It as3s whether the gra#it" of the e#il, discounted b" its

iprobabilit", @ustifies such an in#asion of free speech as isnecessar" to a#oid the danger. 2-ennis #. 0nited States, >410S 494 19?156

♣ &his test was eant to supplant the clear and present

danger. &he" both ephasie the circustances of the

speech, but this one considers the weighing of #alues.4. -irect Inciteent &est

♣ &he test ephasies the #er" words uttered, and their

abilit" to directl" incite or produce iinent lawless action. ♣

It as3s( a5 hat words did he utterB b5 hat is the li3el"result of such utteranceB

♣ It criticies the clear and present danger test for being too

dependent on the specific circustances of each case.?. alancing of interest

♣ &he test applied when two legitiate #alues not in#ol#ing

national securit" cries copete. /onales #. Coelec5

♣ hen a particular conduct is regulated in the interest of

public order, and the regulation results in an indirect,conditional and partial abridgeent of speech, the dut" of

the courts is to deterine which of the two conflictinginterests deands greater protection.

♣ &he court ust underta3e the delicate and difficult tas3 of

weighing the circustances and appraising the substantialit"of the reasons ad#anced in support of the regulation of thefree en@o"ent of rights. 2Aerican Counication Assn #.-ouds cited in /onales #. C:;%


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If it is a pri#ate person there is alwa"s a need for soe arrangeent with respect to the public depiction of apri#ate life of a pri#ate person.

ith respect to a public person, there is soehowuch greater leewa" gi#en to the e!hibition in the for of otion picture or, sa", &G show of the public character of that public persons life. :f course, it does not include hispri#ate life.

A lot of the o#ie actors would fall in this categor".So, can their li#es or can the" be depicted in an art forwithout their perissionB &he answer is onl" with their respect, again, to the public character of that public

personality not the private aspects of their private lives.

C. $=%%-:; :$ %H'=%SSI:N AN- &J% A-;INIS&=A&I:N:$ K0S&IC% C:N&%;'& :$ C:0=&5&he discussion here is with respect to the first is criticis tothe court or of court actions or proceeding or decision. Andthe second would be that of concept S0 K0-IC% =0


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/3$ vs. T/% &'(5(* * atters are sub@ect of discussion, to witD

1. :ne, the application for a perit under the ' 88E can bedenied based on clear and present danger. So, if the rall" is to beallowed since a perit is to be granted and there is a clear and presentdanger that the e#il sought to be a#oided will happen then theapplication ust ha#e to be denied. Jowe#er, if it is to be denied, theapplicant must have to be heard.

*. &he second is that, still in the case of I', the SC said thatwhen the application is ade, it should be granted based on the tersof the application. So for e!aple, the application is ade for aparticular da", and that the rall" particular da" at a particular place, it

should be granted based on those ters. If the


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ACA-%;IC $=%%-:; :$ &J% INS&I&0&I:N&he first would be acadeic freedo of the institution. &he

right of the institution to decide for itself(1. what sub@ects to teach,*. what courses to offer,>. who to hire as part of the ebers of the facult",4. who to adit to stud" in the institution.

&hat goes with it the discretion to deterine what are thereasonable rules for engageent of the ebers of the facult" as wellas reasonable rules for adission and continued adission of itsstudents. &hat would also include the right to for its own ob@ecti#es,

ission, what its policies are in relation to running the institution of higher learning.

ACA-%;IC $=%%-:; I&J =%S'%C& &: &J% &%ACJ%=S&he second would be with respect to the teachers, the

ebers of the facult" because the ebers of the facult" wouldha#e their acadeic freedo in relation to the wa" the" teach thesub@ect, the wa" the" would want to ipart their 3nowledge to their students, the" wa" the" handle their particular sections or sub@ects.

And in the interest of their higher learning, the" are supposed to beprotected also with respect to the results of an" studies that the" a"ha#e done in relation to their further studies on account of their beingebers of the facult" without fear of retribution fro the school for an" ista3e or error that a" ha#e been caused on account of thatparticular stud".

:f course if results of the research were, for e!aple, or apaper based on a research is plagiari$ed or something done to come

up with a false result , then that would not be protected under acadeicfreedo.

$=%%-:; I&J =%S'%C& &: &J% S&0-%N&S&he third which is ostl" related to freedo of e!pression is

that of the students. ecause there ha#e been se#eral cases in thepast decided on which should pre#ail the right of the students to freel"e!press thesel#es in @oining acti#ities in redress of their grie#ances or whether the school has the right to discipline the according to thereasonable rules of the school.

ut since e#er"thing is not absolute, the" ust be sub@ectedto reasonable rules of the school with respect to when the" would beable to e!press their sentients or thoughts on a particular issue.

Again, for so long as these reasonable regulations are iposed b" theschool at least is content neutral restrictions then the" would not beconsidered to be unreasonable regulations on the content of the

speech &hat is wh" the school would alwa"s re+uire that thestudents would ha#e to e!press their grie#ances or conduct rallies or siilar acti#ities in areas of the school were the holding of regular classes would not be disturbed.

:f course these students engaged in these acti#ities wouldnot also be allowed without fear of penalt" to disrupt the holding of regular classes because the other students who are in their classeswould also ha#e the right to continue their stud" in that institution of higher learning. So there would alwa"s be that clash in that particular conte!t.

Now when the students under the ;agna Carta would ha#ethe right to be allowed enrolent in a school and also allowed reenrolent until the full copletion of the course re+uireent to earn adegree. &hese are sub@ect to reasonable rules of acadeics as well asrule on beha#ior or rules of discipline in school.

!!!Now in relation to that is the procedural due process in

the institutions of higher learning. hen the students supposed to beproceeded against b" the school for # iolations rules whether acadeicor rules of discipline. In acadeic rules, theres not uch discussionbecause its as siple as "ou a3e the grade or "ou dont. &heres nosuch thing as the holding of a hearing, in#estigation "ou would beade to e!plain "ourself because "ou ha#e been heard when "ou too3the e!a. &hats the opportunit" to be heard alread" L and during thee!a "ou were supposed to gi#e all the e#idence wh" "ou should passthe sub@ect and not fail the sub@ect. So e#er"thing is gi#en for "ou toe!plain or e#en allowed "ou to attach "our counter#ailing e#idence if there is.

ut for #iolation of the schools rules on discipline, "oualwa"s follow that procedural due process.

:ne of the landar3 cases is that of the Ateneo in#ol#ingfraternit" A+uila ... Short for the > "ears.

A;A terinated the on two grounds( 1. Nonrenewal ofi!ed ter contractD and *. &he contracts, the" will ne#er be regulariedbecause the" fail to pass the probationar" status.

&here was a test, the" failed to pass the test... the'erforance Appraisal S"ste for &eachers 'AS&5 and othere+uireents for regulariation that the school ipleents to aintainits high acadeic standards. So the" were terinated for separateconcerns. &he SC said that there a" be a proble if the probationar"status period o#erlapped the fi!ed ter status. e all 3now that as

wa" bac3 as the rent =uling, a fi!ed ter contract is allowed, so thereis no regulariation or e!pectation of regulariation after the e!pirationof the fi!ed ter contract. ou are agreed for a period of 1"ear, "ourea teporar" facult" because the regular facult" left for further studiesabroad. So "oure hired for a fi!ed ter of 1 "ear. If the period e!piresautoaticall" "ou lose "our wor3, and "ou are therefore not consideredto be regular or there is no #iolation of securit" of tenure.

&he proble here is that, the person is supposed to ha#ebeen hired for a fi!ed ter as pro#ided in their probationar" statusli3e, "oure in contract for > "ears, how would, SC as3ed, if that > "eaperiod as fi!ed in the contract... is that probationar" also or is it a fi!edterB SC said that when, the fi! ter o#erlaps the probationar" statusthen the probationar" status re+uired under Article *81 of the


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probationar" status unless, 1. he has been infored of what ust beachie#ed during the probationar" status otherwise, he will not beregulariedD *. Second, the eplo"ees was not able to eet thosestandards conditioned to be et at that tie of ser#ice. So since, theeplo"ees here were ser#iced or both theres an o#erlapped within thefi!ed ter and the probationar" status b" law, then the SC said that itshould be treated as probationar" status. And that the failure of A;Asdut" to infor the of the reasonable re+uireents to pass theprobationar" status, would a3e their terination or the clai of acadeic freedo of school or institution of higher learning was notconsidered as #alid.

Freedom of Religion

S%'A=A&I:N :$ &J% CJ0=CJ AN- S&A&%

0T/C% //, Section 9. &he separation of Church and State shall bein#iolable.

&here can also be no pa"ent of public funds for religious ser#ices,e!cept for those inisters, preacher who ha#e been eplo"ed in thego#ernent penal institutions, orphanage. &he" are paid not becausethe" are religious people, but because of the tas3s.

3%/%! 7 CT/" T%STIn %


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In glipay v. 0uiz, this Court had occasion to state that thego#ernent should not be precluded fro pursuing #alid ob@ecti#essecular in character e#en if the incidental result would be fa#orable to areligion or sect. It has li3ewise been held that the statute, in order towithstand the strictures of constitutional prohibition, ust ha#e asecular legislati#e purpose and a priar" effect that neither ad#ancesnor inhibits religion. Assessed b" these criteria, =epublic Act No. >>?Ecannot be said to #iolate the constitutional inhibition of the OnoestablishentO of religion5 clause of the Constitution.

Act 4E?* conteplates no religious purpose in #iew. hat itgi#es the -irector of 'osts is the discretionar" power to deterinewhen the issuance of special postage staps would be ad#antageous

to the /o#ernent. :f course, the phrase ad#antageous to the/o#ernent does not authorie the #iolation of the ConstitutionD i.e. toappropriate, use or appl" of public one" or propert" for the use,benefit or support of a particular sect or church. In the case at bar, theissuance of the postage staps was not inspired b" an" sectarianfeeling to fa#or a particular church or religious denoinations. &hestaps were not issued and sold for the benefit of the =oan CatholicChurch, nor were one" deri#ed fro the sale of the staps gi#en tothat church. &he purpose of the issuing of the staps was to ta3ead#antage of an e#ent considered of international iportance to gi#epublicit" to the 'hilippines and its people and attract ore tourists tothe countr". &hus, instead of showing a Catholic chalice, the stapcontained a ap of the 'hilippines, the location of the Cit" of ;anila,and an inscription that reads Seat HHHIII International %ucharisticCongress, $eb. >7, 19>7.

U7%0 T% !0%% %2*6, Art. HIG, 1987 Constitution5 as part of thecurricula. %!pelling or banning the petitioners fro 'hilippine schoolswill bring about the #er" situation that this Court had feared in /erona $orcing a sall religious group, through the iron hand of the law, toparticipate in a cereon" that #iolates their religious beliefs, will hardl"be conduci#e to lo#e of countr" or respect for dull" constitutedauthorities.

%strada vs. %scritor, there was an adinistrati#e case for grossioralit" in#ol#ing a Supree Court eplo"ee because of asupposed to be ioral liaison between two arried indi#idualsseparated fro their respecti#e spouses. &he" ha#e claied that theirassociation or union is authoried as part of their religious practicesand in fact the" were able to show that this practice had long beenpracticed in their religion and there is a docuent signed b" the

supposedl" witnessed b" their /od that their union is a union base ontheir belief.

&he SC applied the co1pelling interest test. e ha#ediscussed this alread" in freedo of e!pression, that if there is acompelling state interest, the state has the right to protect . &he statea" regulate the e!pression, in this case between the e!ercise ofreligion. As we ha#e 3nown fro our freedo of e!pression discussionthere ust ha#e a copelling interest that ust be shown.

hat that copelling state interest is not defined ocontained in an enuerated list of ites that would fall under that. It iserel" characteried as soething preferred li3e national securit"preser#ation of the li#es of ultiple indi#iduals and not #iolating e!pliciconstitutional protection. So if we go b" the e!tree of "our religion&a3e for e!aple "our religion belie#es of offering a #irgin to "our godwe ha#e alwa"s said that it a" be regulated not onl" because it isdifficult to find one now @ust 3idding L5 but because it would result to

soething that the state has the right to pre#ent. Nobod" is entitled to3ill a personD it is said under the Constitution, without due process oflaw. So e#en if with the clai of religious right, that this is free e!ercise we belie#ed that we can be sa#ed fro all of these if we offer a #irginto our god ) that a" not be allowable because there is a copellingstate interest.

0nder that copelling state interest in relation to oudiscussion in freedo of e!pression we also entioned that theremust have to be showing that the intrusion or regulation of thegovernment is necessary and that It is the least intrusive measure onthe free e+ercise to be an allowable regulation. If the eans to regulatein order to protect the state interest is not the least intrusi#e, tharegulation cannot be also considered as #alid.

So there ust ha#e to be a deterination of the court onwhether or not of all the a#ailable eans to protect the copellingstate interest, this is the least intrusi#e of all these easures. In thecase of %strada, the SC clarified that the" were charge of an

adinistrati#e case, again, it would ha#e been different if the" werecharge with a criinal case, sa" for biga" or concubinage, becausethe state has the right to protect its citiens fro coission ooffenses. It ust reain clear that, it a" be different if the" ha#e beencharge criinall" because then again, the state has alwa"s ha#e theright to ensure that the tas3 to protect its citiens is done.

Issue( hether or Not the State could penalie respondent for suchcon@ugal arrangeent.

Jeld( No. &he State could not penalie respondent for she ise!ercising her right to freedo of religion. &he free e!ercise of religionis specificall" articulated as one of the fundaental rights in ouConstitution. As Kefferson put it, it is the ost inalienable and sacred o

F

Deiparine Notes. CONSTITUTIONAL LAW II.Based on the syllabus and notes of Atty. Monteo! as appli"able to the dis"ussion of Atty.#ar"ia.


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huan rights. &he States interest in enforcing its prohibition cannot beerel" abstract or s"bolic in order to be sufficientl" copelling tooutweigh a free e!ercise clai. In thecase at bar, the State has note#inced an" concrete interest in enforcing the concubinage or biga"charges against respondent or her partner. &hus the States interestonl" aounts to the s"bolic preser#ation of an unenforcedprohibition.

$urtherore, a distinction between public and secular oralit" and religious oralit" should be 3ept in ind. &he @urisdictionof the Court e!tends onl" to public and secular oralit".

&he Court further states that our Constitution adheres thebene#olent neutralit" approach that gi#es roo for accoodation of

religious e!ercises as re+uired b" the $ree %!ercise Clause. &hisbene#olent neutralit" could allow for accoodation of oralit" basedon religion, pro#ided it does not offend copelling state interests.

Assuing arguendo that the :S/ has pro#ed a copelling stateinterest, it has to further deonstrate that the state has used the leastintrusi#e eans possible so that the free e!ercise is not infringed an"ore than necessar" to achie#e the legitiate goal of the state. &husthe con@ugal arrangeent cannot be penalied for it constitutes ane!eption to the law based on her right to freedo of religion.

> Puestions in Copelling State Interest &est(1. Is the clai for religious right a sincere claiB*. hether there is sufficient copelling interestB>. Is it the least Intrusi#e of all eansB&hose three +uestions ust ha#e to be answered in order

that a #alid clai for free e!ercise a" be #ested.

$=%%-:; &: '=:'A/A&% =%


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&hese rights cannot be wai#ed e!cept in writing and in thepresence of counsel.

*. No torture, force, #iolence, threat, intiidation, or an" other eans which #itiate the free will shall be used against hi.Secret detention places, solitar", incounicado, or other siilar fors of detention are prohibited.

>. An" confession or adission obtained in #iolation of this or Section 17 hereof shall be inadissible in e#idence againsthi.

4. &he law shall pro#ide for penal and ci#il sanctions for #iolations of this Section as well as copensation to the

rehabilitation of #ictis of torture or siilar practices, andtheir failies.

In 19F>, the 0S Supree Court in the case of +iranda vs. State of rizona, the court ade a ruling that 3nown as the +iranda 0ule.%rnesto ;iranda b" his fail" nae Jispanic was arrested on accountof a coplaint for abduction and rape of a feale and the car platewas ta3en and it was traced to hi. So se#eral da"s later, he wasarrested and placed in custod" and brought to the police station andafter se#eral hours of interrogation he signed a confession. &he courtof Ariona con#icted hi solel" on the basis of the e!tra@udicialconfession and on appeal, the 0S Supree Court discussed andre#ersed the decision of the lower court and reand the case to thelower court for presentation of other e#idence because the e!tra@udicialconfession was e!cluded. &he trial court nonetheless upon the trialcon#icted hi and iposed a penalt". ut in the Supree Court, it hada discussion of what are the rights of the person if that person is

placed under investigation.&here are two distinct rights because the ;iranda =ule was

not "et established which were sought to be re#iewed as ha#ing been#iolated in the case of %rnesto ;iranda( 1.5 Jis pri#ilege against selfincriination which under Sec. 17 of Art. III nowD *.5 Jis right to berepresented b" counsel.

Should a person be assisted b" counsel when he is under in#estigationB And so we cae to be what we ha#e now what we 3nowas ;iranda arning. &his was first incorporated in the 197>Constitution of the 'hilippines, sipl" because the decision was in19F>, it could not ha#e been incorporated in 19>?. hat the rulingsipl" re+uires is that the person ust ha#e to be infored of these socalled ;iranda =ights, and that inforation is what we 3now as;iranda arning.

&he ;iranda =ights are(1.5 &he right to reain silentD

*.5 &he right to be infored that if he would wai#e his right toreain silent an"thing that he will pro#ide and sa" will be and can beused against hi in the court of law.

>.5 Je will also be infored that his ;iranda =ights includethe right to be represented b" counselD and

4.5 If he could not afford the ser#ice of a counsel the statewill pro#ide a counsel for hi.

&o gi#e the ;iranda arning would re+uire uch ore thanthe perfunctor" presentation of the rights. In the 0S, there is no suchthing or onl" soe as difficult" in the anner or wa" that the ;irandaarnings are gi#en but not as uch as here because %nglish is not afirst language.

So, in the pre#ious decisions of the Supree Court on theanner, the SC sipl" characteries it that there ust be ameaningful transmission of a right . ;eaningful transission re+uiresthat indi#idual differences of person to who these warnings are gi#enand to who these rights are afforded ust ha#e to be ta3en into

consideration.&he police officer gi#ing these warnings ust also be able to

gi#e the properly and intelligently . &he Supree Court decisionsha#e placed iportance that the person to who the right pertainsha#e understood the meaning and import of these rights and that would include the meaning and import of any waiver of such rights.

Constitutionall", it is sipl" re+uired that there is aeaningful transission of a right and that if there is a wai#er, thewai#er ust ha#e to be in writing and ust ha#e to be with theassistance of counsel.

&he +uestion is as3ed toda" that ha#e the answers read"because if it were to be as8ed prior to the 5@)6 Constitution, therewas this case of $eople vs. Galit which soehow defined how the

rights are to be wai#ed based on the decision of ;arch *E, 198? whichha#e since then been incorporated in the 1987 Constitution.

So atleast those probles were answered in theConstitution(

1.5 ;eaningful transission of a rightD*.5 ;eaningful transission of the conse+uences of a

wai#erD>.5 &he wai#er ust ha#e to be in writingD and4.5 &he wai#er ust ha#e to be ade with the assistance o

counsel.

-istinction5 So, while the assistance of counsel during the ta3ing of

the testion" or during the in#estigation a" be wai#ed there+uireent that the wai#er ust be in writing with the assistance ocounsel, the assistance of counsel there may not be waived .

&he currentl" +uestion as3ed is that, wh" should the socalled ;iranda =ights be considered as claiable. Constitutionall", iust ha#e to be when a person is ta3en under in#estigation.

In the 7> Constitution it was originall" placed to re+uireCustodial In#estigation. &he person ust ha#e to be placed undecustod". ;eaning the" ust ha#e been arrested at the #er" least for asubstantial restriction of his freedo to go around. It is not necessar"that he is in @ail but at least his freedo to o#e around or obilit" issubstantiall" affected, he is considered to be theoreticall" placed undecustod".

In the case of %scobedo #s. Illinois which was the basis fo87 -raft, one need not be under the custod" an"ore because thee!perience in the 7> Constitution would show that personsin#estigated, adissions are ta3en e#en if these persons are not incustod". So the %scobedo #. Illinois ruling on in#estigation has beenadopted under the 87 Constitution. &he in#estigation happens whenthe person is as3ed or the +uestions as3ed relating to that personspossible coplicit" of the crie under in#estigation. &hese would gobe"ond the general line of +uestioning on the person or personswhereabouts but is now pointing to that person as possible suspect. Soif that +uestion is pointing to that person as a possible suspect thenthat is alread" considered in#estigation regardless of the fact that theperson is in custod" or not. So as soon as the in#estigation is or hascoenced then the right is now at pla".

e sa" that in the Constitutional conte!t because of =.ANo. 74>8 April *7, 199*, it has e!panded the applicabilit" of ;iranda=ule because, a person who is arrested detained or investigated canclaim the right, now as we (now as iranda Rights.

So, before in the Constitutional conte!t, if the person is no"et arrested, he could not clai ;iranda =ights. Je need not beinfored of his ;iranda =ights through a ;iranda arning.

=.A. No. 74>8 has e!panded it to co#er tie of arrestalread". &his is also not claiable for stateent ta3en before the 7>Constitution because there is no ;iranda arning to tal3 about.

It is not also considered in situations li3e police lineupwhere there is no +uestioning technicall". hen the person is faced oidentification in a police lineup, that person is not placed undein#estigation.

&hat is the in the Constitutional conte!t again, because in=.A. No. 74>8, the practice of in#iting persons to the police station toshed light on the crie being in#estigated is considered co#ered unde=.A. No. 74>8. So if "ou were, for e!aple, in#ited to a police stationfor purposed of identification. &he 'olice 8 then the answer shouldbe, that the ;iranda arning should ha#e been gi#en.

=.A. No. 74>8 re+uires docuenting the custodiain#estigation report ust be5(

1.5 In writingD*.5 =ead and understood b" the confessant and>.5 %!plained to hi, if the he does not 3now how to read

and writeD4.5 In the language that he spea3s and understands.

%>tra-Audicial confession ha#e the sae re+uireenbefore it will be signed, which are(

1.5 It ust be in writingD

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*.5 It ust be read and understood b" the person and>.5 It ust be e!plained to hi, if the he does not 3now how

to read and writeD4.5 &he e!planation ust be in the language that he spea3s

and understandsD?.5 It ust be signed b" hi with the assistance of his

counsel.

If there is no counsel because there is a #alid wai#er, thelaw still re+uires that it ust still ha#e to be signed b" that person inthe presence of an" of his parents, older brothers and sisters, hisspouse, the unicipal a"or, the unicipal @udge, district school

super#isor, or priest or inister of the gospel as chosen b" hi.:therwise, such e!tra@udicial confession shall be inadissible ase#idence in an" proceeding.

=eeber, when a person is arrested without warrant, theusual proceedings to be conducted b" the prosecutor against theperson is called in+uest proceeding.

=.A. No. 74>8 defines who can be an assisting counsel asan" law"er, e!cept those directl" affected b" the case, those chargedwith conducting preliinar" in#estigation or those charged with theprosecution of cries cannot be assisting counsel. &hat would be thegeneral rule, then if "ou are the unicipal attorne", cit" attorne",pro#incial legal officer, "ou cannot be an assisting counsel because"oure interested in the prosecution of offenses. &he e!eptionprobabl" is when "ou are a relati#e of that person.

In this right under in#estigation, the choice of counsel use

the word preferabl" and as we alwa"s aintained the word should beunderstood liberall" if it is claied b" that person that preferabl"eans that ) if allowed or allowable under the statute.

$inal ite with respect %!traKudicial Confession would bethe rule on adissibilit". &here are alwa"s two things that would affectthe adissibilit" of the e!tra@udicial confession( 1.5 Puestion on the#alidit" of the wai#erD *.5 Puestion on the #alidit" of the confession.hether the wai#er is #oluntar" or in#oluntar" gi#en, and whether theconfession is #oluntar" or in#oluntar" gi#en.

Now with respect to the wai#er, the burden is alwa"s on theState. ecause this is a Constitutional =ight, the presuption of regularit" does not wor3 in this particular situation. &he presuption isthat the wai#er is not #alid. It is for the State to pro#e that the wai#er was #alidl" gi#en.

So we start with(1.5 ;eaningful transission of the rightD*.5 ;eaningful transission of the conse+uence of the

wai#erD>.5 &hat the wai#er is in writingD4.5 &hat the wai#er has been gi#en with the assistance of a

counsel.ut with respect to the confession, we still follow the

presuption that people would alwa"s easil" confess if the" are liableor guilt" of it. So that if the confessant or the person in#estigated wouldclai otherwise, it is his burden to pro#e that the confession wasobtained b" reason of #itiated consent, or b" force, intiidation, tortureor the li3e. &here is no presuption of torture or an" #itiation of consent e#en if it were true. &he presuption is that, the police officersare perforing their regular function and torture is not part of their regular function.

If the stateent is #oluntaril" gi#en, it is consideredadissible. &his is coonl" obser#ed when persons suspected of coitting a crie are inter#iewed b" edia and perhaps because of lac3 of an" 3nowledge of such rights, the" would norall" gi#einforation as to whether the" ha#e coitted the crie and thoseare adissible because the" are elicited not b" reason of +uestioningwhere the" are place under in#estigation.

Now in adinistrati#e in#estigations which ordinaril" are notin relation to criinal offense, the ;irada rule is not applicable. utthe" ust ha#e the right to be represented b" counsel as re+uired inthe fundaental rules of due process. ut as to whether the" shouldbe gi#en the warning and as to whether the" could be e!tended to theso called ;iranda rights, its another thing.

%!aple, if an eplo"ee is charge adinistrati#el" b" aneplo"er for #iolating a copan" rule or polic", he is entitled torepresentation in accordance to the labor code. Jowe#er, as towhether he is entitled to be infored of his rights to reain silent, it isnot included. It is also not an obligation of the eplo"er to pro#ide hia counsel if he cant afford one, though it is pro#ided under the;iranda rights. ut as to entitleent of counsel and to be infored onthis right it is andated under the labor code.

Sae principle would appl" in cases of students withadinistrati#e cases in tertiar" le#el, it is andated that the" should beallowed representation but the school has no obligation to gi#e;iranda warnings or pro#ide a counsel if the" cant afford one. &his

should not be confused with the pri#ilege of selfincriination undesection 17 because here it is claiable b" an" person in an"proceeding, criinal or adinistrati#e, because the pri#ilege isdifferent.

Right to ailIncomplete discussion below but relevant doctrines are indicated.

0ule 554, Section 5. 2ail defined . Q ail is the securit" gi#en for therelease of a person in custod" of the law, furnished b" hi or abondsan, to guarantee his appearance before an" court as re+uiredunder the conditions hereinafter specified. ail a" be gi#en in thefor of corporate suret", propert" bond, cash deposit, or recogniance

hen =ight a" be In#o3ed =ight to bail.It ust be understood in relation to =ule 114 of the =ules on

Criinal 'rocedure because when the Constitution pro#ides when baiis a atter of right or when it is a atter of discretion, the basis iswhen the offense which a person is charged would carry with it the

penalty of Reclusion )erpetua or higher, bail is a matter of discretion.

Jowe#er, in the =ules of Court, it pro#ides for certaincircustances which a person in a criinal case a" ha#e bail as aatter of discretion e#en if the penalt" is less than =eclusion 'erpetuathis is when the penalt" is si! "ears and one da" to twent" "ears andthere is showing of the following circustances such as being arecidi#ist, habitual delin+uent, that the accused has pre#iousl" escapethere is probabilit" of flight a free list or on bail or ris3 that he wouldcoit another crie.

Section 4. 2ail, a matter of right D e+ception. Q All persons in custod"shall be aditted to bail as a atter of right, with sufficient sureties, o

released on recognie as prescribed b" law or this =ule a5 before orafter con#iction b" the ;etropolitan &rial Court, ;unicipal &rial Court;unicipal &rial Court in Cities, or ;unicipal Circuit &rial Court, and b5before con#iction b" the =egional &rial Court of an offense nopunishable b" death, reclusion perpetua, or life iprisonent. 4a5

Section B. 2ail , when discretionary . Q 0pon con#iction b" the=egional &rial Court of an offense not punishable b" death, reclusion

perpetua, or life iprisonent, adission to bail is discretionar". &heapplication for bail a" be filed and acted upon b" the trial courdespite the filing of a notice of appeal, pro#ided it has not transittedthe original record to the appellate court. Jowe#er, if the decision othe trial court con#icting the accused changed the nature of the offensefro nonbailable to bailable, the application for bail can onl" be filedwith and resol#ed b" the appellate court.

Should the court grant the application, the accused a" be allowed tocontinue on pro#isional libert" during the pendenc" of the appeal undethe sae bail sub@ect to the consent of the bondsan.

If the penalt" iposed b" the trial court is iprisonent e!ceeding si!F5 "ears, the accused shall be denied bail, or his bail shall becancelled upon a showing b" the prosecution, with notice to theaccused, of the following or other siilar circustances(

a5 &hat he is a recidi#ist, +uasirecidi#ist, or habituadelin+uent, or has coitted the crie aggra#ated b" thecircustance of reiterationDb5 &hat he has pre#iousl" escaped fro legal confineente#aded sentence, or #iolated the conditions of his bawithout #alid @ustificationD

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c5 &hat he coitted the offense while under probation,parole, or conditional pardonDd5 &hat the circustances of his case indicate theprobabilit" of flight if released on bailD or e5 &hat there is undue ris3 that he a" coit another crie during the pendenc" of the appeal.

&he appellate court a", motu proprio or on otion of an" part",re#iew the resolution of the =egional &rial Court after notice to thead#erse part" in either case. ?a5

If a person is not "et charged, can a person put up bailB If heis under custod" he could. hat if the accused is alread" charged in

court but not "et arrestedB Can he put up bailB I thin3 the logicalthin3ing would tell us that as soon as the inforation is charged, e#enif no warrant is issued "et, "ou ust be allowed to post bail.

hen bail is a atter of discretion, "ou cannot file itan"where but in the issuing court. If "ou want bail to be reduced or want to post another 3ind of bail other than cash, it ust be applied for in the issuing court. It is onl" the issuing court can e!ercise discretion if there is a need to e!ercise discretion if there is none then "ou could fileit in an" of those court entioned under the rules.

3ail in +ilitary Courts

&here is no bail in ilitar" courts in#ol#ing ilitar" personnelas to the respondent or accused because of the condition or nature of the proceedings in ilitar" courts, including the offenses are not

ordinar" as it in#ol#es offenses against the state, such as treason.

If the" would be allowed bail, the" could be out there andcoit sae acts of treason. Also because the" are issued firearsand for reasons of national securit". &here is a distinct classificationbetween ilitar" personnel and an ordinar" citien.

Standards for !i>ing 3ail

Now when bail is a atter of right, section 9 of rule 114standard for fi!ing bail5 a" be ta3en b" the court in relation to there+uest of the prosecution to increase bail or re+uest of the defense toreduce bail.

Now in case where bail is a atter of discretion hearing isandated. It is a condition precedent, to deterine the presence of those circustances under section ? in rule 114 howe#er, if bail is a

atter of right, hearing is not norall" re+uired. &he court would @ustissue the release after the accused is coplied with the underta3ingre+uireents. ut again, if there is a re+uest in increase or reducedbail, then hearing is norall" ta3en to deterine it.

Sec. 9. Aount of bailD guidelines. ) &he @udge who issuedthe warrant or granted the application shall fi! a reasonable aount of bail considering priaril", but not liited to, the following factors(

a5 $inancial liabilit" of the accused to gi#e bailD

b5 Nature and circustance of the offenseD

c5 'enalt" for the offense chargedD

d5 Character and reputation of the accusedD

e5 Age and health of the accusedD

f5 eight of the e#idence against the accusedD

g5 'robabilit" of the accused appearing at the trialD

h5 $orfeiture of other bailDi5 &he fact that the accused was a fugiti#e fro @ustice when

arrestedD and

@5 'endenc" of other cases where the accused is on bail.

%!cessi#e bail shall not be re+uired.

Now these standards in section 9 are not the hard and fastrule, the" are @ust guidelines that a" be used in deterining aountof bail the court a" use an" other reason for granting bail.

Now, bail is not re+uired when the law does not re+uire an"bail or would allow recogniance.

hen is recogniance allowedB :rdinaril", if the person ischarged with a #iolation of ordinance or of a light felon", the bail to begranted there is erel" recogniance.

0nder =.A. 7F>F, when the penalt" range does not e!ceed Fonths or a fine of not ore than '*EEE.EE or both, recognianceshall be granted. hen the accused has been incarcerated for a periodof at least e+ual to or ore than the iniu of the principal penalt"without appl"ing the odif"ing circustances, the accused shall bereleased on recogniance e#en if that case shall ha#e to continue. Ithe accused has applied for probation and he is not on bail pending thegrant of the application, the accused a" be released on

recogniance. outhful offender under '.-. FE> shall be released onrecogniance. No bail shall be re+uired. And, as we all 3nowrecogniance shall be to place the obligation to a responsible eberof the counit" to ensure that the accused will be present e#er" tiethe case is called and the presence of the accused is re+uired. Now, incash, propert" or suret" as bond, it is +uite eas" to understand that incase of #iolation of the underta3ing of the accused, the cash bond shalbe forfeited in fa#or of the go#ernent as well as the propert" bondand the suret" copan" will be liable for the entire aount of baiunder his guarant".

#illasenor vs bano%!pressions in #ar"ing, language spell out in a general wa"

the principles governing bail fi>ing. :ne is that the aount shouldbe high enough to assure the presence of defendant when re+uired buno higher than is reasonabl" calculated to fulfill this purpose. 9 Anothe

is that the good of the public as well as the rights of theaccused, 34 and the need for a tie to the 5urisdiction and the right tofreedom from unnecessary restraint before conviction under thecircumstances surrounding each particular accused O,11 should all bebalanced in one e+uation.

e are not to consider solel" the inabilit" of a defendant tosecure bail in a certain aount. &his circustance b" itself does noa3e the aount e!cessi#e. 1* $or, where an accused has no eansof his own, no one to bail hi out, or none to turn to for preiupa"ents, an" aount fi!ed no atter how sall would fall into thecategor" of e!cessi#e bailD and, he Owould be entitled to be dischargedon his recogniance.O 1>

So it is, that e!perience has brought forth certain guidelinesin bail fi>ing, which a" be suaried as follows( 15 abilit" of theaccused to gi#e bailD *5 nature of the offenseD >5 'enalt" for theoffense chargedD 45 character and reputation of the accusedD ?health of the accusedD F5 character and strength of the e#idenceD 7

probabilit" of the accused appearing in trialD 85 forfeiture of othebondsD 95 whether the accused was a fugiti#e fro @ustice whenarrestedD and 1E5 if the accused is under bond for appearance at triain other cases.14

ut, at botto, in bail fi!ing, Othe principal factoconsidered, to the determination of which most other factors aredirected , is the probabilit" of the appearance of the accused, or of hisflight to a#oid punishent.O 1? :f iportance then is the possiblepenalt" that a" be eted. :f course penalt" depends to a greae!tent upon the gra#it" of offense.

?ap r. vs C&he purpose for bail is to guarantee the appearance of the

accused at the trial, or whene#er so re+uired b" the court. &he aounshould be high enough to assure the presence of the accused whenre+uired but no higher than is reasonabl" calculated to fulfil thispurpose.

Santiago vs #as2uez A court has the power to prohibit a person aditted to bai

fro lea#ing the 'hilippines. &his is a necessar" conse+uence of thenature and function of a bail bond.H!!

&he condition iposed upon petitioner to a3e hisea#ailable at all ties whene#er the court re+uires his presenceoperates as a #alid restriction on his right to tra#el.

$eople vs 7onato &wai#er of the right to bail5=ights guaranteed to one accused of a crie fall naturall"

into two classes( a5 those in which the state, as well as the accused, isinterestedD and b5 those which are personal to the accused, which are

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in the nature of personal pri#ileges. &hose of the first class cannot bewai#edD those of the second a" be.

It is Ocopetent for a person to wai#e a right guaranteed b"the Constitution, and to consent to action which would be in#alid if ta3en against his will.O44

&his Court has recognied wai#ers of constitutional rightssuch as, for e!aple, the right against unreasonable searches andseiuresD4? the right to counsel and to reain silentD4F and the right tobe heard.

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Deiparine Notes CONSTITUTIONAL LAW II
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