Pamil, Angeline A. BSEDEN 3-1D
A. Government Definitions a. Executive Power - Executive power is vested in the President of the Philippines. - The scope of this power is set set forth in Art. VII of the Constitution. But this power is not limited to those set forth therein. The SC, in Marcos v. Manglapus, referred to the RESIDUAL powers of the President as the Chief Executive of the country, which powers include others not set forth in the Constitution. EXAMPLE: The President is immune immune from suit and criminal prosecution while while he is in office.
b. Legislative Power - The legislative branch, including both the House and the Senate, is given extensive powers by the Constitution. The legislative branch b ranch is the only branch that can create laws or change existing laws. Once a bill is passed through the legislative branch the president must sign the bill in order for it to become a law. The executive branch does have an important check on the legislative branch when the president vetoes a law. However, the legislative branch can override the president's veto if both houses agree to do so with a two-thirds vote by all of its members. - Article I, Section 8 of the Constitution specifically lists the powers of the legislative branch. These listed powers include the power to tax, borrow money, to regulate commerce with foreign nations and among the states, to establish rules for the naturalization of foreigners seeking citizenship, to establish a post office, to raise and maintain an army and navy, n avy, and to declare war.
c. Judicial Power - The Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or in excess of jurisdiction on the part of any branch or instrumentality of the Government. Under the 1987 Constitution of the Philippines, it is vested in one Supreme Court and in such lower courts as may be established by law.
d. Term of office - The number of years a president can serve is not stated in the US Constitution but the example of serving not more than two four-year terms was first adopted by Washington who refused a third term after 1797.
e. Tenure of office - The Tenure of Office Act restricted the President to suspend an officer while the Senate was not in session. (At that time, Congress sat during a relatively small portion of the year.) If, when the Senate reconvened, it declined to ratify the removal, the President would be required to reinstate the official.
f. Separation of Powers - Under the separation of powers, each branch of government has a specific function. The legislative branch— branch —the Congress— Congress—makes the laws. The executive branch— branch—the president— president —implements the laws. The judiciary— judiciary —the court system— system—interprets the laws and decides legal controversies.
g. Fusion of Power - commonly known as a parliamentary system. system. In such a parliamentary parliamentary system, the chief executive--the British Prime Minister (PM), the Prime Minister of Israel, the Bundeskanzler (Federal Chancellor) of Germany--comes to power based on the support of one or more political parties in the legislature which provide an absolute majority of votes to support and maintain that chief executive in power. If one party party has an absolute majority of seats in the legislature, its party leader becomes prime minister and, with the heads of the departments (ministers) that he appoints from his party, a cabinet is formed. The cabinet--Prime Minister and other ministers--make up the Government of the Day.
h. Check and Balance - each branch acts as a restraint on the powers of theother two. The president can either sign the legislation of Congress, making it law, or Veto it. TheCongress, through the Senate, has the power of advise and consent on presidential appointmentsand can therefore reject an appointee. The courts, given the sole power to interpret the Constitutionand the laws, can uphold or overturn acts of the legislature or rule on actions by the president. Mostjudges are appointed, and therefore Congress and the president can affect the judiciary. Thus at notime
does all authority rest with a single branch of government. Instead, power is measured,apportioned, and restrained among the three government branches. The states also follow the three-part model of government, through state governors, state legislatures, and the state court systems.
g. Anarchy - The word "anarchy" is from the Greek, prefix an (or a), meaning "not," "the want of," "the absence of," or "the lack of", plus archos, meaning "a ruler," "director", "chief," "person in charge," or "authority." Or, as Peter Kropotkin put it, Anarchy comes from the Greek words meaning "contrary to authority."
h. Monarchy - Monarchy, political system based upon the undivided sovereignty or rule of a single person. The term applies to states in which supreme authority is vested in the monarch, an individual ruler who functions as the head of state and who achieves his position through heredity. Succession usually passes from father to son or follows other arrangements within the family or the monarchical dynasty.
i. Aristocracy - Aristocracy, government by a relatively small privileged class or by a minority consisting of those felt to be best qualified to rule.
j. Democracy - the belief in freedom and equality between people, or a system of government based on this belief, in which power is either held by elected representatives or directly by the people themselves.
k. Presidential - The elected head of a republican state - a system of government in which the president is constitutionally independent of the legislature.
l. Parliamentary
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a system of government having the real executive power vested in a cabinet composed of members of the legislature who are individually and collectively responsible to the legislature.
m. Unitary - The definition of a unitary government or unitary state is a system of political organization with a central supreme government which holds the authority over and makes the decisions for subordinate local governments.
n. Federal - Body of individuals at the federal level that sets and administers public policy, exercises executive and political power through customs, institutions, and laws within a country.
o. De jure - De jure standards, or standards according to law, are endorsed by a formal standards organization. The organization ratifies each standard through its official procedures and gives the standard its stamp of approval.
p. De facto - De facto standards, or standards in actuality, are adopted widely by an industry and its customers. They are also known as market-driven standards. These standards arise when a critical mass simply likes them well enough to collectively use them. Market-driven standards can become de jure standards if they are approved through a formal standards organization.
B. Characteristics of Sovereignty 1. All Comprehensiveness The State is all comprehensive and the sovereign power is universally applicable. Every individual and every association of individual is subject to the sovereignty of the state. No association or group of individuals, however, rich or powerful it may be, can resist or disobey the sovereign authority. 2. Permanence
Permanence is the chief characteristics of sovereignty. Sovereignty lasts as long as an independent state lasts. The death of the king, the overthrow of the government and the addiction of power does not lead to the destruction of sovereignty. We should keep in mind the basic fact that the king or the ruler exercises sovereign power on behalf of the state and, therefore, sovereignty lasts as long as the state lasts. The death of the king or the overthrow of the government does not affect sovereignty. This is the reason why people in England used to say “The King is dead, long live the King”. 3. Absoluteness Sovereignty is absolute and unlimited. The sovereign is entitled to do whatsoever he likes. Sovereignty is subject to none. 4. Exclusiveness By exclusiveness we mean that there can be two sovereigns, in one independent state and if the two sovereigns exist in a state, the unity of that state will be destroyed. There cannot exist another sovereign slate within the existing sovereign state. 5. Indivisibility Indivisibility is the life-blood of sovereignty. Sovereignty cannot be divided state, American statesman Calhoun has declared, “Sovereignty is an entire thing; to divide it is to destroy it. It is the supreme power in a state and we might just well divide it is to destroy it. It is the supreme power in a state and we might just well speak of half square or half a triangle as half a sovereignty”. Gettell, has also very aptly remarked in this regard, “If sovereignty is not absolute, no state exists. If sovereignty is divided, more than one state exists”. 6. Inalienability Inalienability is another characteristic of sovereignty. Sovereignty is inalienable. By inalienability we mean that the State cannot part with its sovereignty. In other words, we can say that the sovereign does not remain the sovereign or the sovereign state, if he or the state transfers his or its sovereignty to any other person or any other state. Sovereignty is the life and soul of the state and it cannot be alienated without destroying the state itself. Lieber has very aptly remarked in this connection: “Sovereignty can no more be alienated than a tree can alienate its right to sprout or a man can transfer his life or personality to another without self-destruction”. 7. Imperscriptibility By imprescriptibility, we mean that if the sovereign does not exercise his sovereignty for a certain period of time, it does not lead to the destruction of sovereignty. It lasts as long as the state lasts.
C. Kinds of Sovereignty 1. Legal Legal sovereignty is that authority of the state which has the legal power to issue final commands. It is the authority of the state to whose directions the law of the State attributes final legal force. In every independent and ordered state there are some laws which must be obeyed by the people and there must be a power to issue and enforce these laws. The power which has the legal authority to issue and enforce these laws’ is legal sovereignty. 2. Political According to Professor Gilchrist, “The political sovereign means the sum-total of influences in a State which lie behind the law. In modern representative government we might define it roughly as the power of the people”. In other words by political sovereign in the representative democracies, we mean the whole mass of the people or the electorate or the public opinion. But at the same time, it cannot be emphatically asserted that political sovereignty can definitely be identified with the whole mass of the people, the electorate or the public opinion. Political sovereignty is a vague and indeterminate term. 3. Internal Internal sovereignty - refers to the power of the State to control its domestic affairs. It empowers the State to make and alter its system of government, and to regulate its private affairs, as well as the rights and relations of its citizens, without any dictation, interference, or control on the part of any person or body or State outside the particular political community. 4. External External sovereignty - is the power of the State to direct its relations with other States. With this, the State is not subject to the control, dictation, or government of any other power. It implies the right and power to receive recognition as an independent power from other powers, and to make treaties with them on equal terms, make war or peace with them, send diplomatic agents to them, acquire territory by conquest or occupation, and otherwise to manifest the freedom and autonomy. (Suarez, 2005) This is also known as independence. 5. De jure and De facto Sometimes a distinction is made between the De Facto (actual) sovereignty and De Jure (legal) sovereignty. A de jure sovereign is the legal sovereign whereas a de factor sovereign is a sovereign which is actually obeyed. In the words of Lord Bryce, de facto sovereign “is the person or a body of persons who can make his or their will prevail whether with the law or against the law; he or they, is the de facto ruler, the person to whom obedience is actually paid”. Thus, it is quite
clear, that de jure is the legal sovereignty founded on law whereas dc facto is the actual sovereignty. 6. Actual In such States, the real power and authority is in the hands of the actual sovereign, the parliament or the prime minister or the cabinet. 7. Titular Lowell has summed up the position of the British Sovereign in these words: “According to the early history of the constitution, the ministers were the counsellors of the king. It was for them to advise and for him to decide. Now the parts are almost reversed. The king is consulted but the ministers decide”.
D. Definition 1. Constitution The fundamental law, written or unwritten, that establishes the character of a government bydefining the basic principles to which a society must conform; by describing the organization of thegovernment and regulation, distribution, and limitations on the functions of different governmentdepartments; and by prescribing the extent and manner of the exercise of its sovereign powers. 2. Stature - reputation and importance based on admirable qualities or achievements: 3. Ordinance - a rule established by authority; a permanent rule of action 4. Amendments Change in a legal document made by adding, altering, or omitting a certain part or term. Amended documents, when properly executed (signed by all parties concerned), retain the legal validity of the original document. For construction or supply contracts, amendment refers to change made before the contract is awarded, any change made afterwards iscalled modification. 5. Revision - the act of changing or correcting something, or the thing that has been changed or corrected 6. Plebiscite - a plebiscite is 'a direct vote of the qualified electors of a state in regard to some important public question'.
7. Referendum A referendum by the same dictionary is 'the principle or procedure of referring or submitting measures proposed or passed by a legislative body to the vote of the electorate for approval or rejection'. 8. Initiative The initiative is a process that enables citizens to bypass their state legislature by placing proposed statutes and, in some states, constitutional amendments on the ballot. 9. Recall Recall is a procedure that allows citizens to remove and replace a public official before the end of a term of office. Recall differs from another method for removing officials from office – impeachment – in that it is a political device while impeachment is a legal process. 10. Impeachment A process that is used to charge, try, and remove public officials for misconduct while in office. Impeachment is a fundamental constitutional power belonging to Congress. This safeguard againstcorruption can be initiated against federal officeholders from the lowest cabinet member, all the wayup to the president and the chief justice of the U.S. Supreme Court. 11. Constitution Conventional The Conventional of Enacted Constitution is the constitution that was created through a constitutional convention; this convention is called to be able to draft the constitution. 12. Enacted An Enacted Constitution is a man-made constitution. It is made, enacted and adopted by an assembly or council called a Constituent Assembly or Constitutional Council. It is duly passed after a thorough discussion over its objectives, principles and provisions. It is written in the form of a book or as a series of documents and in a systematic and formal manner. The Constitutions of India the USA, Japan, China and most of other states are enacted constitutions. 13. Cumulative The Cumulative or Evolve Constitution is the constitution that is developed as a part of the history of a particular nation; it was not created through a national convention. 14. Evolve An evolved constitution is one which is not made at any time by any assembly of persons or an institution. It is the result of slow and gradual process of evolution. Its
rules and principles draw binding force from the fact of their being recognised as ancient, historical, time-tested and respected customs and conventions. 15. Written A written constitution means a constitution written in the form of a book or a series of documents combined in the form of a book. It is a consciously framed and enacted constitution. It is formulated and adopted by a constituent assembly or a council or a legislature. 16. Unwritten An unwritten constitution is one which is neither drafted nor enacted by a Constituent Assembly and nor even written in the form of a book. It is found in several historical charters, laws and conventions. It is a product of slow and gradual evolution. The government is organised and it functions in accordance with several well settled, but not wholly written rules and conventions. The people know their Constitution. They accept and obey it, but do not possess it in a written form. An unwritten constitution cannot be produced in the form of a book. 17. Rigid/ inelastic The Rigid Constitution is one which cannot be easily amended. Its method of amendment is difficult. For amending it, the legislature has to pass an amendment bill by a specific, usually big, majority of 2/3rd or 3/4th. For passing or amending an ordinary law, the legislature usually passes the law by a simple majority of its members. 18. Flexible/ elastic A Flexible Constitution is one which can be easily amended. Several political scientists advocate the view that a flexible constitution is one in which the constitutional law can be amended in the same way as an ordinary law. Constitutional amendments are passed in the same manner by which an ordinary law is passed. 19. Preamble A clause at the beginning of a constitution or statute explaining the reasons for its enactment andthe objectives it seeks to attain. Generally a preamble is a declaration by the legislature of the reasons for the passage of thestatute, and it aids in the interpretation of any ambiguities within the statute to which it is prefixed. Ithas been held, however, that a preamble is not an essential part of an act, and it neither enlargesnor confers powers.
7.6 Five purposes found in the preamble include:
1.
establish justice
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insure domestic tranquility
3.
provide for the common defense
4.
promote the general welfare
5.
secure the blessings of liberty to ourselves and our posterity
7.7 Manifestation of a Democtrative and Republican State A. Definition Bill of right -
A declaration of individual rights and freedoms, usually issued by a national government.
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A list of fundamental rights included in each state constitution. The first ten amendments to the U.S. Constitution, ratified in 1791, which set forth and guaranteecertain fundamental rights and privileges of individuals, including freedom of religion, speech, press,and assembly; guarantee of a speedy jury trial in criminal cases; and protection against excessivebail and Cruel and Unusual Punishment.
Natural right Fundamental human rights based on universal natural law, as opposed to those based on man-made positive law. Although there is no unanimity as to which right is natural and which is not, the widely held view is that nature endows every human (without any distinction of time or space, and without any regard to age, gender, nationality, or race) with certain inalienable rights (such as the right to 'life, liberty, and pursuit of happiness') which cannot be abrogated or interfered with by any government. And that, whether or not these rights are enshrined in a national legal code, no government is lawful if it fails to upholds them.
Political right Political rights are the rights exercised in the formation and administration of a government. They are given to citizen by the constitution. These rights give the citizen power to participate directly or indirectly in the administration.
Political rights are the right to political participation. Political participation can take many forms; the most notable form is the right to vote. The right also covers the right to join a political party; the right to stand as a candidate in an election; the right to participate in a demonstration; and freedom of association.
Constitutional rights Rights given or reserved to the people by the U. S. Constitution, and in particular, the Bill of Rights(first ten amendments). These rights include: writ of habeas corpus, no bill of attainder, no duties ortaxes on transporting goods from one state to another.
Statutory rights A statutory right is a right granted under a statute, whether federal or state. Statutory means relating to statutes, which are laws enacted by a legislature or other governing body. The written statutes can be used as authority to govern resolving the disputes they address in many cases, rather than case law or judge-made law, constitutional law, contract law, etc.
Due process of law A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will begiven notice of the proceedings and an opportunity to be heard before the government acts to takeaway one's life, liberty, or property. Also, a constitutional guarantee that a law shall not beunreasonable, Arbitrary, or capricious.
Procedural due process Procedural due process refers to the aspects of the due process clause that relate to the procedure of arresting and trying persons who have been accused of crimes. It also applies to any other government action that deprives an individual of life, liberty, or property. According to the principle of procedural due process, if a person is deprived of life, liberty or property, s/he is entitled to adequate notice, hearing, counsel, and a neutral judge. This principle follows the concept of fundamental fairness.
Substantive process The substantive limitations placed on the content or subject matter of state and federal laws by theDue Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution.
Equal Protection of Law A phrase in the Fourteenth Amendment to the UnitedStates Constitution requiring that states guarantee thesame rights, privileges, and protections to all citizens.This doctrine reinforces that of due process of law andprevents states from passing or enforcing laws thatarbitrarily discriminate against anyone.
Class Legislation Class legislation refers to legislation that applies to certain persons or class of persons, either natural or artificial, or to certain districts of territory or state. Class legislation violates equal protection guaranteed through the fourteenth amendment of the U.S. Constitution. An Act enacted in the form of private act for the benefit of certain individual is an example of class legislation.
Right of Privacy The right to privacy is the right to be let alone, in the absence of some "reasonable" public interest in a person's activities, like those of celebrities or participants in newsworthy events. Invasion of the right to privacy can be the basis for a lawsuit for damages against the person or entity violating the right.
Probable Cause Probable cause is a standard used in justifying certain police actions. For example, police need to have probable cause to believe evidence of a crime exists in requesting a search warrant to be issued. It is more than mere suspicion but less than the amount of evidence required for conviction.
Search Warrant A search warrant is an order issued by a judge that authorizes police officers to conduct a search of a specific location. A search warrant describes the address to be searched, identifies the persons (if known) and any articles intended to be seized. Such a search warrant can only be issued upon a sworn written statement of a law enforcement officer seeking the warrant to the magistrate and requesting the magistrate to issue the warrant based on the probability of criminal activity. Police may search a dwelling even when the occupant is not present and even without exigent circumstances.
Warrant of Arrest An arrest warrant is a judge's order to law enforcement officers to arrest and bring to jail a person charged with a crime. Before an arrest warrant is issued, the district attorney, a police officer or an alleged victim must make a sworn statement that the accused person committed a crime. It is also called a warrant of arrest.
Cross Examination Cross examination is the questioning of a witness at a trial or hearing by the opposing party who called the witness to testify. • The purpose of cross -examination is to ascertain the credibility of a witness before the fact-finder and to bring out contradictions and improbabilities in his/her earlier testimony, by putting leading questions thus by trapping the witness into admissions that weaken the testimony. Leading questions are limited to matters covered on direct examination and to credibility issues.
Inadmissible Evidence Inadmissible evidence is that evidence which may not be received by the judge or jury in a case in order to decide the merits of a controversy. Rules of evidence, which vary by jurisdiction, determine the admissibility of evidence. It is the judge's duty to apply the rules of evidence in the case at hand to determine its admissibility; however, the judge need not introduce all admissible evidence.
Freedom of Expression Also known as freedom of speech. Includes free press; to express beliefs andideas without unwarranted government restriction.
Religious Freedom The Religious Freedom Restoration Act of 1993 is a federal law that aims at preventing laws that substantially burden a person's free exercise of their religion. The purpose of the act was to protect religious individuals and organizations against government interference with the practice of their faith. One can bring a lawsuit against the federal, state, or local government if s/he belief that laws or other governmental action substantially burdened their religious practices. In such actions, the government must demonstrate that its actions served a compelling interest and that there were no less restrictive ways to accomplish its goals.
Non-Establishment Clause The Establishment Clause is a provision in the First Amendment of the U.S. Constitution, extended to apply to the states through the Fouteenth Amendment, which prohibits laws dealing with the establishment of religion. Neither the state or federal government may enact laws which aid one or all religions, or give a preference to one religion over another. The Establishment Clause was intended to prohibit the federal government from declaring and financially supporting a national religion.
Freedom to Believe Depending on your traditions of faith, or your personal priorities, the free exercise of religion may look very different for you than it does for others. Religious exercise can emphasize ritual and ceremony; or it can be about attire, or diet; it can be about how we minister to others, or about the rules and principles to which we commit ourselves. It can mean different things at different times of the year, or times of the day.
Freedom to Act In Accordance To One's Belief Depending on your traditions of faith, or your personal priorities, the free exercise of religion may look very different for you than it does for others. Religious exercise can emphasize ritual and ceremony; or it can be about attire, or diet; it can be about how we minister to others, or about the rules and principles to which we commit ourselves. It can mean different things at different times of the year, or times of the day.
Power Of Eminent Domain By virtue of the power of eminent domain, the government, as a sovereign, has the authority to take private property for public use upon observance of due process of law and payment of just compensation (NPC vs. Court of Appeals, G.R. No. 106804, August 12, 2004 citing Visayan Refining Co. v. Camus, 40 Phil. 550). For purposes of taking private properties, the term national government projects shall refer to all national government structure, engineering works and service contracts, including projects undertaken by government-owned and controlled corporations, all projects covered by Republic Act (R.A.) No. 6957, as amended by R.A. No. 7718 or the BuildOperate-and Transfer law, and other related and necessary activities, such as site acquisition, supply and/or installation of equipment and materials, implementation, construction, completion, operation, maintenance, improvement, repair, and rehabilitation, regardless of the source of funding (Section 2, RA No. 8974). The government may acquire private properties through donation, negotiated sale,
expropriation or any other mode of acquisition as provided by law (Section 3, RA No. 8974).
Expropriation The act of taking of privately owned property by a government to be used for the benefit of the public. In the United States, the government has the right to take property through eminent domain.
Sequestration The action of taking legal possession of assets until a debt has been paid or other claims have been met.
Police Power The capacity of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants.
Taxing Power Congress has power under Article I, Section 8 to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare. Under the 16th Amendment, Congress can collect taxes on incomes that are derived from any source.
Pauper Litigant Any court may authorize a litigant to prosecute his action or defense as a pauper upon a proper showing that he has no means to that effect by affidavits, certificate of the corresponding provincial, city or municipal treasurer, or otherwise. Such authority, once given[,] shall include an exemption from payment of legal fees and from filing appeal bond, printed record and printed brief. The legal fees shall be a lien to any judgment rendered in the case [favorable] to the pauper, unless the court otherwise provides.
Docket Fee means a sum of money charged by a court for placing a case on its docket or calendar. In other words, it means a set amount chargeable as part of the expenses of the action.
Preliminary Investigation is an inquiry conducted by law enforcement representatives to gather more information about an allegation. The purpose of the inquiry is twofold: it is designed to determine whether or not a crime was committed and to identify a suspect or confirm a suspect's identity.
Prima Facie Referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial. A prima facie case presented to a Grand Jury by the prosecution will result in an indictment. Example: in a charge of bad check writing, evidence of a half dozen checks written on a non-existent bank account makes it a prima facie case. However, proof that the bank had misprinted the account number on the checks might disprove the prosecution's apparent "open and shut" case.
Right Against Self-Incrimination Under Section 17 of Article III of the 1987 Constitution, “No person shall be compelled to be a witness against himself.” It does not exactly say “right against self incrimination.” Also, under the Rules of Criminal Procedure, particularly Rule 115, Section 1 [e], an accused at TRIAL is exempt from being compelled to be a witness against himself. Again, no phrase involving the words “self -incrimination.” Lastly, and more importantly, under the Senate section (Article VI, The Legislative Department) of the Constitution, if there is an inquiry in the aid of “legislation”, the rights of persons appearing in, or affected by, such inquiries shall be respected (Section 21).
The Right To Remain Silent The right to remain silent is designed to protect a person who is undergoing police questioning or trial. This right may help a person avoid making self-incriminating statements. It may also include the condition that unfavorable comments or inferences
cannot be made by the tribunal because the defendant refused to answer questions before or during a court trial.
Testimonial and Nontestimonial Compulsion In the 1960s the Supreme Court ruled that the right against self-incrimination was not infringed when police compelled the driver of an accident vehicle to give a blood sample for analysis of its alcoholic content, compelled a suspect in a lineup to utter
Writ Of Amparo "Amparo" which originated in the political experience of Latin American countries, is derived from "amparar" which means "to protect." As envisioned by our own Supreme Court, the writ of amparo can be availed of "as protective tool and remedy for the greater protection of the constitutional rights of the victims". Human rights groups welcomed the advent of amparo which they perceived as "additional deterrence" to abuses committed by the military and police. Official statistics of this Court on amparo petitions filed since October 24, 2007 when the Rule became effective, tend to confirm that complaints of this nature have considerably decreased.
Writ Habeas Corpus A writ of habeas corpus (literally to "produce the body") is a court order to a person (prison warden) or agency (institution) holding someone in custody to deliver the imprisoned individual to the court issuing the order.
The Right to Bail The right to bail is available to any person arrested, detained, or otherwise deprived of his liberty, whether or not an information or criminal complaint has been against him. However, persons charged with offenses punishable by reclusion perpetua when evidence of guilt against him is strong cannot avail of the right to bail.
Reclusion Perpetua Reclusion perpetua entails imprisonment for at least thirty [30] years after which the convict becomes eligible for pardon. It also carries with it accessory penalties, namely: perpetual special disqualification, etc. It is not the same as life imprisonment which, for one thing, does not carry with it any accessory penalty, and for another, does not appear to have any definite extent or duration.’
Recognizance a bond by which a person undertakes before a court or magistrate to observe some condition, especially to appear when summoned.
The Presumption of Innocence is an important part of our criminal law system. Basically it means that if you are accused of a crime, you don't have to prove you are innocent. Instead, it is the job of the prosecutor to prove you are guilty.
Martial Law Martial law is a system of absolute miltary control over all military and civilian activities of a country, in a theoretical or actual war zone, during civil disorder, in occupied territory, after a coup d'etat, or during a state of emergency caused by a natural disaster such as an earthquake or flood. In the United States only the President as commander-in-chief has authority to impose martial law and it must be limited to the duration of the warfare or emergency. It cannot be imposed in a manner resulting in a long-term denial of constitutional rights.
Trial in Absentia In absentia is a Latin Term meaning "in the absence". In the context of criminal law, it refers to a trial carried on without the presence of the accused. However, due to the right to confront accusers granted under the Sixth Amendment, such trials rarely occur. Some states will conduct a trial in absentia when the defendant flees or otherwise voluntarily fails to appear in court after being arrested. An automatic retrial may be granted by state law when someone is arrested after being convicted in absentia. State laws vary, so local law should be consulted.
Ex Post Facto Law Ex post facto is a Latin term meaning “after the fact.” Ex-Post Facto Law is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law. In U.S ex-post facto criminal laws are prohibited under the Constitution. Article I, section 10, clause 1 of the Constitution provides that no state shall pass any ex post facto law. Similarly Article I, section 9, clause 3 imposes the same prohibition upon the federal government. However retrospective civil laws may be allowed. Nonetheless under certain circumstances they may violate the Contract or Due Process Clauses of the
Constitution. The prohibition on ex post facto laws operates solely as a restraint on legislative power. It has no application to changes in the law made by judicial decision.
Bill Of Attainder Bill of Attainder is a legislative act pronouncing a person guilty of a crime, and punishing them without benefit of a trial. This usually done is cases of treason.
Bill Of Pains And Penalties Bill of Pains & Penalties refers to a special act of a legislature which inflicts a punishment less than death upon persons supposed to be guilty of treason or felony, without any conviction in the ordinary course of judicial proceedings.
Right Against Double Jeopardy The Fifth Amendment's Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; [2] a second prosecution for the same offense after conviction; and [3] multiple punishments for the same offense. However, if charges are brought by independently by state and federal governments, it has been found not to violate the Double Jeopardy Clause.
Life The term “life” in the due process clauses is not often the subject of dispute.
7.7 B. Enumeration 1-4 Requisites Of Procedural Due Process (1) the right to a hearing, which includes the right to present one’s case and submit evidence in support thereof; (2) the tribunal must consider the evidence presented; (3) the decision must have something to support itself; (4) the evidence must be substantial 5-8 Requisites Of A Valid Warrant (5.) It must be issued upon probable cause;
(6.) The probable cause must be determined personally by the judge himself; (7.) The determination of the existence of probable cause must be made after examination by the judge of the complainant and the witnesses he may produce; and (8.) The warrant must particularly describe the place to be searched, and the persons or things to be seized.
9-11 Requites Of Trial In Abscentia (9.) That there has been an arraignment; (10.) That the accused has been notified; and (11.) That his failure to appear is unjustified.
12-15 Rights Of Person Under Investigation (12) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (13) 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. (14) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (15) 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.” (16.)
To be presumed innocent until the contrary is proved beyond reasonable doubt.
(17.) To be informed of the nature and cause of the accusation against him. (18.) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to pomulgation of the judgment. (19.) 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.
(20.)
To be exempt from being compelled to be a witness against himself.
(21.) 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 cannot 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. (22.) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf. (23.)
To have speedy, impartial and public trial.
(24.) To appeal in all cases allowed and in the manner prescribed by law.
25-30. The Requisites of Double Jeopardy (25.)
A first jeopardy must have validly attached prior to the second
(26.)
The first jeopardy must have been validly terminated
(27.) The second jeopardy must be for the same offense or the second offense includes or is necessarily included in the offense charged in the first information or is an attempt to commit the offense or a frustration thereof (28.) Bail when not required
29-30 Instances when bail is not allowed (29.) No bail shall be required when the law or these Rules so provide. When a person has been in custody for a period equal to or more than the possible maximum imprisonment prescribed for the offense charged, he shall be released immediately, without prejudice to the continuation of the trial or the proceedings on appeal. If the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. (30.)A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court (Sec. 16).
