NCMF PARALEGAL TRAINING MANUAL (MODULE 5)

NCMF Paralegal Training Program

MODULE 5:

Basic Constitutional Rights

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Legal Basis

(1) Article III, Philippine Constitution (Bill of Rights)

(2) Rules on Criminal Procedure

(3) Related Laws

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Right to due processArticle III, Sec. 1, Philippine Constitution:

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

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Right to due process

Due process:

“A law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial.”

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The due process clause of the Constitution covers:

(1) Equal protection of law;

(2) Presumption of innocence.

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Aspects of due process:

(1) Substantive due process

(2) Procedural due process

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Right against unreasonable searches and seizures

Article III, Sec. 2, Philippine Constitution:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.”

ARREST

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RULE 113, Rules of CourtARREST

ARREST is the taking of a person into custody in order that he may be bound to answer for the commission of an offense.How made —by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest.

No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention.

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Rule 113, §5 LAWFUL ARREST WITHOUT

WARRANTA peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense (in flagrante delicto);

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Rule 113, §5 LAWFUL ARREST WITHOUT

WARRANT(b) When an offense has just been committed and he has

probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another

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Rule 113, §5LAWFUL ARREST WITHOUT

WARRANTIn cases of in flagrante delicto and eye-

witnesses/ with personal knowledge, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.

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Rule 112 §7Procedure in case of lawful arrest without warrant and PI is required

Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel.

Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception.

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Rule 112 §7Procedure in case of lawful arrest without warrant and PI is required

After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule.

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Article 125—Revised Penal Code

Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. — The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of;

twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent.

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Rule 113, §6-7Method of Arrest With Warrant

• An arrest may be made on any day and at any time of the day or night.

• The officer shall inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest, EXCEPT when he flees or forcibly resists before the officer has opportunity to

so inform him or when the giving of such information will imperil the

arrest.

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Rule 113, §6-7Method of Arrest With Warrant

The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable.

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Rule 113, §8Method of Arrest by

Officer Without Warrant• The officer shall inform the person to be

arrested of his authority and the cause of the arrest, unless:

the latter is either engaged in the commission of an offense;

is pursued immediately after its commission;

has escaped, flees, or forcibly resists before the officer has opportunity to so inform him;

or when the giving of such information will imperil the arrest. (8a) 2044

Rule 113, § 11, 12: Breaking Into, Out of Building

• SEC. 11. Right of officer to break into building or enclosure.—...where the person to be arrested is or is reasonably believed to be, if he is refused admittance thereto, after announcing his authority and purpose.

• SEC. 12. Right to break out of building or enclosure to effect release. - Whenever an officer has entered the building or enclosure in accordance with the provisions of the preceding section, he may break out therefrom when necessary for the purpose of liberating himself.

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Rule 113, § 14: Right to Counsel, Visit

• SEC. 14. Right of attorney or relative to visit person arrested.—...at the request of the person arrested or of another acting in his behalf, have the right to visit and confer privately with such person in the jail or any other place of custody at any hour of the day or night. Subject to reasonable regulations, a relative of the person arrested can also exercise the same right.

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Searches and Seizures

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RULE 126SEARCH AND SEIZURE

Search warrant defined.—A search warrant is an: order in writing ; issued in the name of the People of the Philippines;

signed by a judge; and directed to a peace officer; commanding him to search for personal property

described therein and bring it before the court.

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Where Application for SW filed

(a) Any court within whose territorial jurisdiction a crime was committed; or(b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced.

However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending.

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Personal Property to be Seized

—A search warrant may be issued for the search and seizure of personal property:

(a) Subject of the offense;

(b) Stolen or embezzled and other proceeds, or fruits of the offense; or

(c) Used or intended to be used as the means of committing an offense.

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Requisites forissuing search warrant

A search warrant shall not issue except: upon probable cause in connection with one specific

offense to be determined personally by the judge after examination under oath or affirmation of the

complainant and the witnesses he may produce and particularly describing the place to be searched

and the things to be seized which may be anywhere in the Philippines.

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Requisites forvalid search

The search warrant must be for one specific offense only.

The conduct of the search must be reasonable. The search must be done in the presence of the lawful

occupants of the place being searched, or of any member of his family, or in the presence of 2 witnesses of sufficient age and discretion residing in the locality.

Generally the search warrant must indicate that the search be done during the day, unless otherwise indicated that the warrant can be served at any time of day or night.

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Right of peaceful assembly and freedom of speech


“No law shall be passed abiding the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances.”

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Right to free exercise of religion


“No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.”

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Right to just compensation


“Private property shall not be taken for public use without just compensation.”

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Right to free access to justice and to the courts


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

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Rights of persons under criminal investigation

Article III, Sec. 14 (1), Philippine Constitution:

“No person shall be held to answer for a criminal offense without due process of law.”

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Rights of persons under criminal investigationArticle III, Sec. 12 (1), Philippine Constitution:

“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 competence and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.”

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Rights of persons under criminal investigation

The “Miranda rights”:

• The right to remain silent;

• The right to competent and independent counsel of one’s choice;

• The right to be informed of such rights.

Republic Act (RA) No. 7438

“AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF”

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RA 7438 As used in this Act, "custodial investigation"

shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law.

“In the absence of any lawyer, no custodial investigation shall be conducted and the suspected person can only be detained by the investigating officer in accordance with the provisions of Article 125 of the Revised Penal Code.”

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RA 7438Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers.–

(a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel.

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RA 7438(b) Any public officer or employee, or anyone

acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer.

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RA 7438(c) The custodial investigation report shall be

reduced to writing by the investigating officer, provided that before such report is signed, or thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever.

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(d) Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding.

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RA 7438

RA 7438(e) Any waiver by a person arrested or

detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise the waiver shall be null and void and of no effect.

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RA 7438(f) Any person arrested or detained or under

custodial investigation shall be allowed visits by or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, or by any national non-governmental organization duly accredited by the Commission on Human Rights of by any international non-governmental organization duly accredited by the Office of the President.

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Violations under RA 7438

(a) Failure of any arresting officer or employee or any investigating officer to inform any person arrested, detained or under custodial investigation of his rights to remain silent and to have competent and independent counsel preferably of his own choice;

(b) Obstructing, preventing, or prohibiting any lawyer, any member of the immediate family of a person arrested, detained or under custodial investigation, or any medical doctor or priest or religious minister or his counsel chosen by him, from visiting and conferring privately, or from examining and treating him, or from ministering to his spiritual needs.

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Right against torture


“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.”

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Article III, Sec. 12 (3-4), Philippine Constitution:

“Any confession or admission obtained in violation of this or Section 17 (the right against self-incrimination) shall be inadmissible in evidence against him.”

“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.”


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“The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.”

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Rights of an accused Article III, Sec. 14 (2), Philippine Constitution:

“In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.”

Rule 115, Rules of CourtRights of the Accused

SECTION 1. Rights of accused at the trial.—In all criminal prosecutions, the accused shall be entitled to the following rights:

a) To be presumed innocent until the contrary is proved beyond reasonable doubt.

(b) To be informed of the nature and cause of the accusation against him.

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Rights of the Accused(c) To be present and defend in person and by counsel at

every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail bond, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present during that trial.

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Rights of the Accused... When an accused under custody had been notified of

the date of the trial and escapes, he shall be deemed to have waived his right to be present on said date and all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel.

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Rights of the Accused(d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him.

(e) To be exempt from being compelled to be a witness against himself.

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Rights of the Accused(f) To confront and cross-examine the witnesses against

him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him.

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Rights of the Accused(g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf.

(h) To have speedy, impartial and public trial.

(i) To appeal in all cases allowed and in the manner prescribed by law.

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Right to speedy trial Article III, Sec. 16, Philippine Constitution:

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

Right to a speedy trial

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Right against self-incrimination


“No person shall be compelled to be a witness against himself.”

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Right to bail Article III, Philippine Constitution:

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

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

Rule 114, §3No release except on bail or court

orderNo release or transfer except on court order or bail.—

No person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail.

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Rule 114, §5BAIL A MATTER OF RIGHT

All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule:

(a) before or after conviction by the MeTC, MTC or Municipal Circuit Trial Court; and

(b) before conviction by the RTC of an offense not punishable by death, reclusion perpetua, or life imprisonment.

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BAIL, WHEN DISCRETIONARY

SEC. 5. Bail, when discretionary.

Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary.

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NON-BAILABLE OFFENSES

• SEC. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable.—

No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution.

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Modes of BailRule 114, §10-11, 14-15

(1) Cash deposit (2) Surety bond(3) Property bond(4) Recognizance

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Right against political persecution


“No person shall be detained solely by reason of his political beliefs and aspirations.”

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Right against involuntary servitudeArticle III, Sec. 18 (2), Philippine Constitution:

“No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.”

NCMF PARALEGAL TRAINING MANUAL (MODULE 5)

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