SOUTHERN MINDANAO COLLEGES

Pagadian City

Member: Philippine Association of Colleges and Universities (PACU)

Philippine Association for Graduate Education (PAGE)
Philippine Association of Private Technical Institution (PAPTI)
Philippine Association of Private Schools, Colleges and Universities (PAPSCU)

Nomenclature : GENERAL EDUCATION ELECTIVE 2

Description : Readings in Governance and Philippine Constitution
Credits. : 3 Units, 3 Hrs a week, modular modality, one semester course
Basic Text : DE LEON, Hector S. Philippine Constitution; Rex Book Store,
1996 856 Nicanor Reyes St., corner Claro M. Recto Ave.,
Manila, Philippines.
Professor : Datu Mangura Dr. Roselito S. Bala
Executive Director, Office of the Quality Assurance
Management System, SMC, Pagadian City

OBJECTIVES OF THE COURSE: At the end of the term, the students would be able to:
1. Familiarize the concepts of constitutions.
2. Be able to understand what are the different policies of the state that serves as the guiding
principles of the government in implementing its program, and;
3. Familiarize the basic of fundamental constitutional rights of the people, etc.

A. THE STUDY OF POLITICAL SCIENCE

Meaning of Political Science:

Reduce to its simplest terms, Political Science - is the systematic the state and the
government. The word “Political” is derived from the Greek “polis” meaning a city, or what
today would be equivalent to sovereign state, the word “Science” comes from the Latin “Scire”
means “to know”.

1. The science of politics, therefore, has its formal object, a basic knowledge and
understanding of the state and of the principles and ideals which understand its
organizations and activities;
2. It is primarily concerned with the associations of human beings into a “body politic” or
a political community (ones organized under government and law).
3. As such, it deals with those relations among men and groups which are subject to
control by the state, with the relations of men and groups to the state itself, and with the
relations of the state of other states.

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Scope of Political Science:

1. Political Theory – refers to the entire body of doctrine relating to the origin, form
behavior and purpose of the state.
2. Public Law - the (a) organization of government, (b) the limitations upon government
authority, (c) the powers and duties of government offices and officers, (d) the
obligations of one state to another are handled in the study of public law.
3. Public Administration - focused upon the methods and techniques used in the actual
management of the state affairs by the executive, legislative and judicial branches of
government.

Interrelationships with other branches of learning:

1. History - the bond between political scientist and the historian is obvious in the
observation that “history is past politics and politics is present history” the political
scientist frequently adopts a “historical approach and employs knowledge of the past
when seeks to interpret present and probable developments in political phenomena.
2. Economics - Is the study of production, distributions, conversations and consumptions of
wealth. This coupled under the name political economy. Today, these fields are jointly
concerned with the fact that economic conditions affect the organizations, development
and the activities of the state, which in turn modify or even prescribe economic
conditions. The political scientist regularly adopts an “economic approach” when seeking
to interpret such matters as Public Financial Policies and government regulation of
business.
3. Geography-Geopolitics – a science concerned with the study of the influence of physical
factors such as population pressure, source of raw materials, geography, etc., upon
domestic and foreign politics indicates one approach which a political scientist frequently
must adopt to help explain such phenomena as the early growth of democracy in Great
Britain and the US and its retarded growth in the certain Continental Europe, and the rise
of authoritarian governments in developing countries.
4. Sociology and Anthropology – The political scientist, the sociologist (who specialize in
the study of society as a whole) and the anthropologist (who studies mankind in relation
to physical, social cultural development).
5. Psychology – the study of metal emotional processes motivating the political behavior of
individuals and groups.
6. Philosophy – the concept and doctrines of Plato, Aristotle and Locke and other universal
thinkers about the state are important to the specialist in academic philosophy and also to
the political scientist. These concepts are the underlying forces in the framing of
Constitutions and laws. The political scientist considers the branch of philosophy called,
ethics, too, when contemplates the moral background of proposed changes in social
legislation.
7. Statistics and logic – The political theorist must process a broad scientific background
and knowledge of current political problem and he must employ scientific methods in

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 gathering and evaluating data and in drawing conclusions. This involve a proper
application of statistical procedure for the analysis of reasoning.
8. Jurisprudence – This branch of public law which concerned with the analysis of existing
legal system and also with the ethical, historical, sociological and psychological
foundation of law.

Functions and importance of Political Science:

1. The function of political science is to discover the principles that should be adhered to in
public affairs and to study the operations of the government in order to demonstrate what
is good, to criticize what is bad or inefficient and to suggest improvements.
2. It’s findings and conclusion may be of immense practical use to constitutions-makers,
legislators, executives and judges who need models or norms that can be applied to
immediate situations. Again, they may be of immense practical use to individuals who
seek to understand the state in which they live.

Goals in the study of Political Science Courses:

1. Education for citizenship – in answer, it should be made clear that the primary objective
of the political science curriculum is education for citizenship. The preparation of the
students for career in politics, law, teaching, the civil service and the foreign service
through vitality important is secondary to ask of equipping them to discharge the
obligations of democratic citizenship, which grown constantly heavier in the modern
world.
2. Essential parts of liberal education – Most political science courses should be viewed
as essential parts of liberal education, bearing no materialistic price tag and promising no
job security.
3. Knowledge and understanding of government - political science seeks to gather and
impart knowledge and understanding. The good citizens who behave himself and votes
regularly is no longer enough. He must be a citizen who knows the answers. He must
know how his government really operates, what interest and forces are behind particular
policies are likely to be, what his rights and obligation are, who is elected representatives
are, and what they stand for…

B. CONCEPTS OF STATE AND GOVERNMENT

State - is a community of persons more or less numerous, permanently occupying a

definite portion of territory, having a government of its own to which the great body of
habitants render habitual obedience and enjoying freedom from external control.

Difference between State and a Nation

a. A state is an independent political entity with clear geographic boundaries and a nation is
a large population that shares the same culture. Sometimes, although not always, these
two entities overlap. When a homogenous group of people with a common culture have

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 their own independent government and recognized boundaries, the entity is called a
nation-state.
b. A state has different defining characteristics compared to a nation. A state issues money
and has a bureaucracy that provides services to its citizens. It also has recognition from
other states. One of the key differences between a state and a nation is that a state has the
right to enter into agreements with other states.
c. Nations have a population that shares the same language, traditions and religions. This is
not necessarily true of states. States often have diverse population consisting of various
groups or nations. One example of a diverse state is Canada. Although the majority of the
country is English speaking, a large minority speaks French and has different cultural
traditions than the majority. Belgium, which has a French-Speaking population that speak
Dutch, is another example.
d. Some nations cross the boundaries of two or more states. An example is the Kurdish
nation, which has members in the states of Iraq and Turkey.

Elements of State:

1. People – This refers to the mass of population living within the state. Without people
there can be no functionaries to govern and no subjects to govern. There is no
requirement as to the number of people that should compose a state. But it should be
neither to small nor too large; small enough to be well-governed and large enough to be
self-sufficing. Reputedly, the smallest state in point of population is the Vatican. It’s
estimated 1,000 citizens mainly clerics and some Swiss Guards, are ruled by the Pope.
The island Republic of Nauru has a total population of only 9,000. China is the largest
state in point of populations placed at more than one billion. The Philippines is now
estimated to have a population of more than 94 million.
2. Territory -It includes not only the land over which the jurisdictions of the state extends,
but also the rivers and lakes therein, a certain area of the sea which abuts its coasts and
the air space above it. Thus, the domain of the state may be described as terrestrial,
fluvial, maritime and aerial. The smallest state in point of territory is Vatican located just
outside the western boundary of Rome with and area of only 1/6 square mile or 0.43
square kilometer. It would fit in Rizal Park in Manila. The Republic of Nauru has an area
about 8 square miles or 20 sq. km. The former Soviet Union (USSR) was the largest state
in point of territory with its total land area of about 8,599,776 sq. miles. Now, the biggest
state is Canada, having an area of 3,825000 sq. miles which covers a surface nearly as
large as Europe. The Philippines has a total land area of about 115,707 sq. miles or
299,681 sq. km.
3. Government-it refers to the agency through which the will of the state is formulated,
expressed and carried out.
4. Sovereignty – means the supreme power of the state to command and enforce obedience
to its will from people within its jurisdiction and corollary, to have freedom from foreign
control.

Manifestation of Sovereignty

a. Internal Sovereignty- the power of the state to rule within its territory.

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 b. External Sovereignty- the freedom of the state to carry-out its activities without
subjection or control by other state. External sovereignty is often referred to as
“independence”.

Theories of the State’s Origin:

1. Divine right theory- It holds that the state is of divine creation of God and the ruler is
ordained by HIM (GOD) to govern the people. Reference has been made by advocates of
this theory to the laws which Mosses received at Mount Sinai.
2. Necessity or Force Theory – it maintains that the states must have been formed or
created through force by some great warriors who imposed their will upon the weak.
3. Paternalistic Theory – it attributes that the origin of the state is though the enlargement
of the family which remained under the authority of the father or mother. By natural ages,
the family grew into a clan, then developed into a tribe which broadened into a nation and
the nation became a state.
4. Social contract theory- It asserts that the early states must have been formed by
deliberate and voluntary compact among the people to form a society and organized a
government for their common good. This theory justifies the right of the people to revolt
against a bad ruler.

Rights and Obligations of State

1. The foremost right of all states is the right to exist as a sovereign and independent
political Entity. In the exercise of this right to self-preservation, it can use force against
anybody that threatens its existence.
2. Right to property and domain. A state has the absolute right over everything within its
territory.
3. Right of jurisdiction. This right of a state to exercise its authority over all the persons and
things within its territory.
4. Right of intercourse with other states. A state has the right to deal with other states for
their mutual help, cooperation and welfare.

Doctrine of the State as “Parens Patriae”

It is the opinion of the United States Supreme Court as quoted in Cabanas vs. Pilapil that “This
prerogative of parens patriae is inherent in the supreme power of every state”. Under this
doctrine of parens patriae which in Latin means, Parents/Guardian of the country, the state has
the power of guardianship over persons who are unable to take care of themselves or protect
themselves, such as Infants, lunatics and minors.

Doctrine of the State Immunity From Suit

1. Basis of the Doctrine. “There can be no legal right against the authority which makes the
law on which the right depends” (Republic v. Viliasor, 54 SCRA 83).
2. Who enjoys this Immunity?

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 a. The State
1. Government Agencies that perform governmental functions enjoy this immunity.
Thus, municipal corporations as agencies of the government enjoy immunity.
However, If their charter so provides that “they can sue and be sued” then they do not
enjoy such immunity.
2. Unincorporated Agencies when they perform governmental functions as their
principal functional immunity are immune. When they perform proprietary functions,
they are immunity liable to be sued.
3. Public officers enjoy this immunity for acts performed by them in the discharge of
their duties and within the scope of their authority. Thus, “ultra vires” acts of public
officers are not covered by this immunity. The public officer concerned is personally
responsible and liable for such act.
b. Other states enjoy immunity from suit because of the principle of “par in parem non
habit im-perium” which means literally, “an equal cannot have power over an equal”.
c. The United Nations as well as its organs and specialized agencies enjoy immunity from
suit in local courts. International organizations or international agencies may also be immune
from suit brought to local courts and administrative tribunals.

The Fundamental and Inherent Powers of State

1. Police Power – is the power of the state for promoting public welfare by restraining and
regulating the use of liberty and property (Law of Overruling Necessity).
2. Power of Taxation - is the power by which the state raises revenue to defray the
necessary expenses of the government.
3. Power of Eminent Domain – is the power of the state to acquire private property for
public purpose upon payment of just compensation.

Public Purpose, Use or Welfare

1. Socialized housing
2. Construction of extension roads, streets, sidewalks, viaducts, bridge, ferries, Levees,
wharves or piers
3. Construction or improvement of public buildings
4. Establishment of parks, playgrounds or plazas
5. Establishment of market places
6. Construction of artesian wells or water supply systems
7. Establishment of cemeteries or crematories
8. Establishment of drainage system, cesspools or sewerage system
9. Construction of irrigation canals or dams
10. Establishment or nurseries, health centers or hospitals
11. Establishments of abattoirs, and
12. Building of research, breeding or dispersal centers for animals

Forms of Government

Classifications of government as to;

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1.As to the number of persons exercising sovereign powers:
a. Monarchy – one in which the supreme and final authority is in the hands of a single
person without regard to the source of his election or the nature or duration of his tenure,
further classified as;
1. Absolute monarchy – one in which the ruler rules by divine right;
2. Limited monarchy – one in which the ruler rules in accordance with a
constitution.
b. Aristocracy - one in which the political power is exercised by a few privileged class
which is known as the aristocrats and the oligarchs.
c. Democracy - one in which the political power is exercised by the majority of the people.
Democratic government is further classified into;
1. Direct or pure democracy – one in which the will of the state is formulated or
expressed directly and immediately through the people in a mass meeting or
primary assembly rather than through the medium of delegates or representatives
chosen to act for them;
2. Indirect, representative or republican democracy – on in which the will of the
state is formulated and expressed though the agency of a relatively small and
select body of persons chosen by the people to act as their representatives.

2. As to extent of powers exercised by the central or national government;

a. Unitary government - one in which the control of the national and local affairs is
exercised by the central or national government.
b. Federal government - one in which the powers of government are divided between sets
of organs one for national affairs and the other for local affairs, each organ being supreme
within its own sphere. (USA)

3. As to relationship between and the legislative branches of the government;

a. Parliamentary government – one in which the state conform upon the legislature the
power to terminate the nature office of the real executive. Under this system, the Cabinet
or Ministry is immediately or legally responsible to the legislature and mediately or
politically responsible to the electorate, while the titular or nominal executive
- the chief of state
- occupies a position of irresponsibility;
b. Presidential government – one in which the state makes the executive constitutionally
independent of the legislature as regards of his tenure and to a large extent as regards to
his policies and acts and furnishes him with sufficient powers to prevent the legislature
from trenching upon the sphere marked out by the constitution as executive independence
and prerogative.

Functions of Government

1. Constituent or Compulsory Functions:

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 A. The keeping of order and providing for the protection of persons and property
B. The fixing of the legal relations between man and wife and between parents and children
C. The regulation of property and the determination of its liabilities for debt or for crime
D. The determination of contract rights
E. The definition and punishments crimes
F. The administration of justice and civil cases
G. The determination of political duties, privileges, and relations of citizens
H. The dealing of the State with foreign power
I. The preservation of the state from external danger or encroachment and
J. The advancement of its international interest

2. Ministrant or Optional Functions.

Public works, public educations, public charity, water supply and sewerage service, health and
safety regulations, and regulations s of trade and industry. The Principles should perform those
function sunder which the government shall exercise these optional functions: The government
which cannot be undertaken by the private sector of sOciety were these are needed to the welfare
and interest of the country.

Other Forms

1. Civil government – on in which citizens of their representatives.

2. Military government – one which is established and administered by a belligerent in the
territory of an enemy occupied by him.
3. Constitutional Government - one which power of those who rule are defined and limited in
their exercise by a constitution so as to protect individual’s rights and shield them against the
assumption of arbitrary powers.
4. Despotic government – one in which the powers of those who rule are not defined and
limited in their exercise by a constitution.
5. Elective government - One of which the state confers powers upon a person or organized
composed of person, chosen by qualified voters, and holding the powers thus conferred to
define term and under certain conditions.
6. Hereditary government - one in which the state confers powers of government upon a
person, or organization composed of person standing in a certain family relation to his or her
immediate predecessors.
7. Coordinate government – on in which state distributes the powers of government according
to their nature among separate departments or bodies each equally independent of but
coordinate with the other or others.
8. Consolidate government -one in which the state confides all governmental powers to a
single body.
9. De jure government – one in which is founded on existing constitutional laws of the state
and has the general support of the state.
10. De facto government – one in which not founder on existing constitutional laws of the state
and is maintained against the rightful authority of an establish ed and lawful government.
11. Revolutionary government – one installed. Whether by force or otherwise, not in
accordance with the procedure prescribed in an existing constitution.

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Note: On the basis of the above classifications of government, it can be said that the Philippine
government is a representative democracy, a unity, presidential, civil, constitutional, elective,
coordinate and the jure government.

The Government of The Philippines in Transition

1. The Pre-Spanish government:

a. Unit of government - Prior to the arrival of the Spaniards, the Philippines was composed
of settlements or villages of each called barangay (consisting of more or less 100
families), name after balangay, a Malayan word meaning “sailboat” (thereby confirming
the theory that the Early Filipinos came to the Philippines in boats).
b. Datu – Each barangay was ruled by a chief of called “Datu” in some places, and raja,
sultan or Hadji another’s. He was it chief executive, law-giver, chief-judge and military
head.
c. Social classes in the barangay – The people of the barangay were divided into four
classes, namely, the nobility (Maharlika), to which all the datu belonged, the
freemen(Timawa), the serfs (Aliping Mamamahay), and the slaves (Aliping sagigilid).
d. Early laws - the early Filipinos has both written and unwritten laws. The written laws
were promulgated by the datus. The two know written in the pre-Spanish ear are the
“maragtas code” which was said to have been written about 1250 A.D. by Datu
Sumakwel of Panay. The unwritten laws consisted of customs and traditions which had
been passed down from generations to generation.
e. Comparison with the other ancient governments – It can be said that the laws of the
barangay were generally fair. The system of government although defective was not so
bad considering the conditions is other lands in the age during which is flourished. An
eminent scholar has written “The Filipinos people, even in the pre-historic times has
already shown high intelligence and moral virtues; virtues and intelligence clearly
manifested in their legislation which taking into consideration the circumstances and the
epoch in which it was framed, was clearly as wise as prudent and has humane, as that of
the nation’s then at the head of civilizations.

2. Government during the Spanish period:

a. Spain’s to the Philippines – it was banned on the discovery made by Ferdinand

Magellan in 1521, consummated by its conquest by Miguel Lopez de Legaspi for five
late and long possession for almost four centuries until it was terminated in 1898, when
by the Treaty of Paris, the Philippines was coded by Spain to the United States.
b. Spanish colonial government – From 1565 to 1821, the Philippines was indirectly
govern by the king of Spain though Mexico. From 1821 when Mexico obtained her
independence from Spain responsible for the administration of the Philippines was the
Council of indies. In 1837, it was abolished and legislation for the Philippines affairs.
Three Times during the Spaniards period (1810-1813, 1820-1823 and 1836-1837), the

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 Philippines was given presentation in the Spanish Cortes, the legislative body of Spain. A
basic principle introduce by Spain to the Philippines was the union of the church and the
state.
c. Government in the Philippines unitary - The government which Spain established in
the Philippine was centralized structure and national in scope. The barangay were
consolidated into towns (pueblos) each headed by a governador cillo (Little governor),
popularly called captain and the towns into province. Cities govern under special
characters were also created. Each of these cities had ayuntamiento or cabil (city
councii). Cebu as the first city to be established in 1565 in the Philippines. The second
was Manila in 1571.
d. The Governor-General – The powers of the government were actually exercised by the
Governor-General who resided in Manila. He was "Governor-Genera!", "Captain-
Genera" and Vice royal patron. As Governor-General, he was Commander-in-chief of all
Armed forces in the broad powers, it has been said that the Governor-General enjoyed
more powers than the king of Philippines. As Vice royal patron, he was exercised certain
religious powers. Because of these Spain himself. This was justified, however, because
the distance of the Philippines from Spain. The Governor-General was assisted by many
boards and officers, particularly the Board of Authorities and the Council of
Administration. Governor-General in the Philippines was Miguel Lopez de Legaspi
(1565-1571 and the last was Gen. Diego de los Rios (1898).
e. The Judiciary – The Royal Audience which has established in 1583 was the Supreme
Court of the Philippines during the Spanish times. Its decisions were final except on
certain cases of great importance which could to the king of Spain.

3. Governmental during the revolutionary era:

a. The Katipunan Government - The Katipunan was the secret society precipitated our
glorious revolution on August 2, 1896. It was organized by Andres Bonifacio. The
Central Government of the Katipunan was vested in a Supreme Council (Kataastaasang
Sanggunian). In each province there was a provincial Council (Sanggunian Balangay).
And each town a popular Council (Sanggunian bayan). The Judicial power was exercised
by a judicial council (Sanggunian Hukuman). The Katipunan was replaced by another
government whose officials headed by Gen. Emilio Aguinaldo as President, were elected
in the Tejeros Convention held on March 22, 1897.
b. The Biak na Bato Republic – On Nov 1, 1897, a republic was established by General
Aguinaldo in Biak na Bato (now San Miguel de Mayumo, Bulacan). It had a constitution
which was to affect for two years only. It declared that the aim of the revolutions was the
“separations of the Philippines from the Philippines from the Spanish monarchy and their
formation into an independent state". The Biak-na-Bato Republic lasted up to December
15, 1897 with the conclusion of the "Pact of Biak-na-Bato".
c. The dictatorial government – following the outbreak of the Spanish-American war on
April 25, 1898, Gen. Aguinaldo in view of the chaotic conditions in country, established
the dictatorial government on May 4, 1898. The most important achievements of
Dictatorial Government was the proclamation of the Philippine Independence at Kawit on
June 12, 1898 and the reorganized of local governments.

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 d. The Revolutionary Government - On June 23, 1898 Gen Aguinaldo established the
revolutionary government replacing the Dictatorial Government. The decree making
change that the aims of the new government where “struggle for the Independence of the
Philippines, until all nations including Spain will expressly recognized it". And to
"prepare the country for the establishment of a real Republic".
e. The First Philippine Republic - On September 15, 1898 a revolutionary congress of
Filipino representatives met in Malolos, Bulacan and framed the so called the Malolos
Constitution. The Constitutions established a "Free and Independent Philippine Republic"
which was inaugurated on January 23, 1899 with the General Aguinaldo as President.
Our First Philippine Republic was not recognized by the family of nations. It was
nevertheless an organized government because it actually existed and its authority was
accepted by the people. It is existed from January 23, 1899 to March 23, 1901. In
February 1899, the United States annexed the Philippines as a result of the Spanish-
American war and in April 1901, Gen. Aguinaldo was captured. Thus, the first
democratic County is Asia and West Pacific, but the Malolos Constitution which
provided for the establishment of a Philippine Republic had o opportunity to operate.

4. Government during the American regime:

a. The Militarv Government -The American military rule in the Philippines began on
April 14, 1898 the day after the capture of Manila. The existence of war gave the
President of the United States the power to establish a military government in the
Philippines, as Commander-in-chief of all armed Forces of the United of America. His
authority was delegated to the military governor who exercised as long as the war lasted,
all powers of government the First American Military Governor was General Nesley
Merritt the second was General Ehwell E. Ctis, and the third and last was Major General
Arthur McArthur.
b. The civil Government - Pursuant to the called Spooner Amendment (on the Army
Appropriation Act passed in the U.S. Congress on March 3, 1901) which ended the
military regime in the Philippines, the civil government was inaugurated in Manila on
July 4, 1901 headed by a civil Governor (the title was later changed to Governor General!
On February 6, 1905) also exercised legislative powers. He remained as the president of
the Philippine Commission, the sole law- making body of the government from 1901 to
1907. From 1907 to 1916, the Philippine commission acted as the Upper House of the
legislative branch with the Philippines Assembly serving as the lower house. With the
passage of the Spooner law in 1916, these two bodies gave way to the Philippine
legislature. The Philippine was represented by in the United States by two residents
Commissioner who were elected by the Philippine legislature. These Commissions had
seats in the United States House of Representatives receiving the same emoluments and
other privileges as the American members of the body but without right to vote. The First
Civil- Governor was judge William H. Taft (1901 1903). He was succeeded by Luke F.
Wright (1904- 1906) who was the first American to enjoy the title of Governor-General
of the Philippines. The last Governor-General was Frank Murphy (1933-1935) who was
also the first High Commission of the united States to the Philippines upon the
inauguration of the Commonwealth Government of the Philippines.

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 c. The Commonwealth Government of the Philippines - The next stage in the political
development oft the Filipinos was the establishment of the Commonwealth Government
of the Philippines pursuant to an act of the United States Congress on March 24, 1934,
commonly known as Tydings-McDuffie Law. Among other thin gs, the law provided for
a transition period of ten(10) years during the which the Philippine Commonwealth
would operate and at the expiration of said period on July 4, 1946 the independence of
the Philippines would be proclaimed and established. The new government of the
Commonwealth of the Philippines, Deemed successor to the government of the
Philippine islands, was inaugurated on November 5, 1935, following the first national
election under the 1935 Constitution held on September 12, 1935 with Manuel L. Quezon
and Sergio Osmeña, as President and Vice-President respectively.

The Commonwealth government of the Philippines was republican in form under the
Presidential Type. The legislative power was first vested in a Unicameral National
Assembly and Later in bicameral congress composed of the Senate and the House of
Representatives The Judicial power was vested in the supreme Court and inferior Courts
as provided by law. The government of the Commonwealth of the Philippine was very
autonomous. The Filipinos had almost compete control over the domestic affairs, the
United States retaining control only over matters involving foreign affairs. During the
World War II, the Commonwealth Government functions in exile in Washington from
May 13, 1942 to October 3, 1944. It was established in Manila on February 27, 1915
when Genera! Douglas McArthur, in a ceremony held at Malacañan Palace on behalf of
the United States Government, turned over to President Osmena the full powers and
responsibilities of the Commonwealth Government under the 1935 Constitution.

5. Government during the Japanese Occupation:

1. The Japanese Military Administration - It was established in Manila on January 3,

1942 one day after its occupation. Under a proclamation issued by the Japanese High
Command, the sovereignty of the United States over the Philippines was declared
terminated.
2. The Philippine Executive Commission - a civil government known as the Philippine
Executive Commission of Filipinos with Jorge B. Vargas as Chairman was organized by
the military forces of Japan. The Commission exercised both the executive and legislative
powers. The laws enacted were however, subject to the approval of the Commander-in-
chief of the japanese Forces.
3. The Japanese - sponsored Republic of the Philippines - On October 14, 1943 the so
called lananese sponsored Republic of the Philippines was inaugurated with lose P.
Laurel as President. It was of the same character as to Philippine Executive Commission.
Like the latter, the ultimate sources of is authority and government. On August 17, 1945
President Laurel proclaimed the dissolution of the Republic.

6. The Provisional Government of 1986:

Before Corazon C. Aquino took her oath of office on the morning of February 25, 1986 at
Club Filipino, San Juan, Metro Manila, the last day of four-day People Power revolt (Feb. 22-25)

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that culminated in the ouster of former President Ferdinand E. Marcos, she read proclamation
No. 1, wherein, she declared that, she and her Vice-President were talking power in the name by
the will of the people expressed in the election on Feb. 7, 1986. in her oath, she swore to
preserve and defend the fundamental law (not the Constitution) and executive just laws (instead
of its laws).

1. Revolutionary - The government was revolutionary because it was instituted not in

accordance with the procedure provided in an existing Constitution. There is a definite
acknowledgement in Proclamation No.3 that provisional government established there
under was revolutionary in character (without calling itself as such) having been installed
by direct action of the people or by "People Power", deriving its existence and authority
directly from the people themselves and not from the then operating 1973 Constitution.
2. De Jure/de Facto - the first is one constituted or founded in accordance with the existing
Constitution of the state (according to law), while the other is not so constituted or
founded but has the general support of the people and effective control of the territory
over which it exercises it powers. A De facto government acquires a de jure status when
it gains with acceptance from the people and recognition from the community of nations.
3. Constitutional, democratic and transitory - The provisional government was not
purely revolutionary but not a hybrid constitutional revolutionary government, i.e.
revolutionary government governing under a provisional or interim constitution, the
people could invoke to protect their rights and to promote their welfare, to exist for a
limited period until the ratification and affectivity or a permanent constitution.
4. Powers - À revolutionary government being a direct creation of the people derive it
powers from the people to whom alone it is accountable.
5. The Provisional Constitution - Instead of declaring the 1973 Constitution with the
certain amendments and minus certain articles and provisions, as the interim constitution,
Proclamation No. 3 promulgated a Provision Constitution to replace the former adopting
into to so far as they are not inconsistent with the provisions of the Proclamation, certain
provisions of the 1973 Constitution. By its nature, the Provisional Constitution as well as
the Revolutionary Government which operated under its self-destruct upon the
ratification and affectivity of the new Constitution of Feb 2, 1987.

Concept of Constitution

Constitution - refers to the body of rules and principles in accordance with which the powers of
sovereignty are regularly exercised.
- Is a written instrument by which the fundamental powers of the government are
established, limited and defined by which these powers are distributed among the
several department or branches for their safe and usual exercise for the benefit of
the people.

Natures and Purposes/Functions of Constitution:

1. A Constitution is the charter creating the government.

2. It has the status of being supreme or fundamental law as it speaks for the entire people
from whom it derives its claim to obedience.

13
 3. It is binding on all individual citizens and all organs of the government.
4. It is the law to which all other laws must conform and in accordance with which all
private rights must be determined and all public authority administered.
5. it is the test of the legality of all government actions, whether proceeding from the
highest official or to the lowest functionary.
6. The purpose of the constitution is to prescribe the permanent framework of the system of
the government.
7. To assign to the different departments or branches their respected powers and duties.
8. Establish certain basic principle on which the government is founded.
9. It is primarily designed to preserve and protect the rights of individuals against the
arbitrary action of those in authority.
10. Its function is not to legislate in the detail but to set limits on the otherwise unlimited
power of the legislature.

Other names attributed to the constitution:

1. Fundamental Charter
2. Laws of Superior importance
3. Organic Laws
4. Fundamental Laws - Spain
5. Basic Laws - West Germany

Kinds of Constitution: it's Classification;

1. As to their origin and history:

a. Conventional or enacted - One which is enacted by a constituent assembly or
granted by a monarch to his subjects like the Constitution of Japan in 1889.
b. Cumulative of evolved - like the English Constitution, one which is a product of
growth of a long period of development originating in customs, traditions, judicial
decisions rather than a deliberate and formal enactment.
2. As to form:
a. Written - on which has been given a definite written form at a particular time, usually by
a specially constituted authority called "Constitutional Convention"
b. Unwritten - One which is entirely the product of political evolution, consisting largely of
a mass of customs, usages and judicial decisions together with a smaller body of statutory
enactment of a fundamental character usually bearing different dates.
3. As to the manner of amending them:
 Rigid or inelastic - One regarded as a document of special sanctity which cannot be
amended or altered except by some special machinery more cumbrous than ordinary
legislative process.
 Flexible or elastic - One which possesses no higher legal authority than ordinary laws
and which may be altered in the same way as the other laws.

Requisites of a good written constitution:

1. as to form:
14
 a. Brief - because if a constitution is too detailed, it would lose the advantage of a
fundamental law which in a few provisions outlines the structure of the government of
the whole state and the rights of the citizens. It would be probably never be understood
by the public.
b. Broad - because a statement of the powers and functions of government and of the
relations between the governing body and the governed, requires that, it be as
comprehensive as possible.
c. Definite - because otherwise the application of its provision to concrete situations may
prove unduly difficult if not impossible.

Constitution Distinguish from Statute:

1. A Constitution is a legislation direct from the people, while statute is a legislative from
the people's representatives.
2. A Constitution merely states the general framework of law and the government, while
statute provides the details of the subject of which it treats.
3. A constitution is intended not merely to meet existing conditions but to govern the future,
while a statue is intended primarily to meet existing conditions.
4. A constitution is the supreme or fundamental law of the state to which statue and all other
laws must conform.

Operational Constitutions of the Philippines:

1. The Constitution of Biak-na Bato

2. The Malolos Constitution
3. The 1943 Constitution of the second Republic
4. The 1935 Constitution as amended
5. The 1973 Constitution as amended
6. The Provisional (Freedom) Constitution
7. The New 1987 Constitution

Organs of the Government Pursuant to the 1987 Constitution:

1. Executive Department
1. vested in the President
2. The Policy making and implementing body of the state
2. Legislative Department
1. the law-making body of the state
2. consisting the Senate and the House of Representatives
3. Judicial Department
1. The decision-making body of the state
2. Vested in the Supreme Court and other interior courts
4. Independent Constitutional Commissions
1. Commission on Flections (COMELEC)
2. Civil Service Commissions (CSC)

15
 3. Commission on Audit (COA)
5. Local Government Units (LGU's)
1. Provinces
2. Cities
3. Municipalities
4. Barangavs
6. Other Constitutional Bodies
1. Electoral Tribunal
2. Commission on Human Rights
3. Commission on Appointments
4. Judicial and Bar Council
5. Sandiganbayan
6. Ombudsman (Tanodbayan)

PREAMBLE

Preamble - it is the introductory remark of the Constitution

- It is an introduction to the main subject
- It is the prologue of the Constitution
- Derived from the Latin word "Preambulare" means "to walk before"

Aims of the Preamble:

1. To build a just and human society

2. To establish a government that shall
a. Embody our ideals and aspirations
b. Promote the common good
c. Conserve and develop our patrimony; and
d. Secure to ourselves and our posterity, the blessings of independence and democracy
under the rule of law and a regime of truth, justice, freedom, love, equality and peace.

Article I

National Territory

"The national territory comprises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea,
the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around
between, the connecting the islands of the archipelago, regardless of their breadth and
dimensions, from part of the internal waters of the Philippines."

Territory - refers to the geographical area or region belonging to or under the jurisdiction of a
governing state.

16
Archipelago - is a group of island surrounded by big body of water.
- A big body of water studded with many islands
- Derived from Greek word "pelagos" means "Sea" and "archi" means land.

The National territory of the Philippines:

1. The Philippine archipelago with all the islands and waters embraced therein
2. All other territories over which the Philippines has sovereignty or jurisdiction
3. The terrestrial, fluvial and aerial domains including the territorial sea, the sea-bed, the
sub-soil, the insular Shelves and other submarine areas
4. The internal waters

Other territories included in the Philippine Archipelago:

1. The territorial sea - it is the part of the sea extending 12 nautical miles (19) kms. From
the low watermark. it also called "marginal sea", "marginal belt", or "marine belt".
2. The sea-bed - (sea floor or sea bottom) - this refers to the land that holds the sea, lying
beyond the sea shore including mineral and natural resources.
3. The sub-soil - this refers to everything beneath the surface soil and the seabed, including
mineral or natural resources.
4. Insular shelves - (continental shelves) - they are the submerged portions of a continent of
offshore island, which slopes gently seaward from the low waterline to a point where a
substantial break in a grade occurs, at which point the bottoms slopes seaward at a
considerable increase in slope until the great depths are reached.
5. Other sub-marine areas - they refer to all areas under the territorial sea. Among
oceanographic terms use are seamount, trough, trench, basin, deep, bank, shoal and reef.
6. The territories ceded by Spain to the united states in the Treaty of Paris on December 10,
1898, for the sum of $20,000,00;
7. The islands of Cagayan, Sulu and Siboto ceded by Spain to United States in the Treaty of
Washington on November 7, 1900;
8. The Turtle and Mangsee islands by virtue of the treaty between the United States and
Great Britain in January 2, 1930;
9. The islands of Batanes by virtue of its own occupation and possession and therefore
which has always been held as part of the territory of the Philippines.

Three-fold divisions of navigable rivers:

1. inland or internal waters - They are the parts of the sea within the land territory. They
are considered in the same light as rivers, canals, and lakes within the land territory of a
state. They are sometimes called National Waters.
2. Territorial sea - Is a belt of water outside and parallel to the coastline or to outer limits
of the inland or internal waters.

17
 3. High or Open sea - They are waters that lie seaward of the territorial sea.

Archipelagic Doctrine

This refers to the doctrine which advocates the integration of a group of islands to the sea
and their oneness so that together they constitute one unit, one country and one state. This
accomplished by drawing an imaginary single baseline around the islands by joining appropriate
points of the outermost islands of the archipelago with straight lines. In this way, all the islands
enclosed within the baseline part of the territory and the waters around, between and connecting
the islands of the archipelago regard less of their breadth and dimensions, form part of internal
waters of the Philippines.

Archipelago is defined as a sea or part of a sea studded with islands, often synonymous with
island groups, or as a large group of islands in an extensive body of water, such as sea. (De Leon,
1991)

In various conferences of the United Nations on the Law of the Sea, the Philippines and
other archipelago states proposed that an archipelagic state composed of groups of islands
forming a state is a single unit, with the islands and the waters within the baselines as internal
waters.By this concept (archipelagic doctrine), an archipelago shall be regarded as a single unit,
so that the waters around, between, and connecting the islands of the archipelago, irrespective of
their breadth and dimensions. form part of the internal waters of the state, subject to its exclusive
sovereignty.

Elements of Archipelagic Doctrine

The Philippine Sea is a marginal sea east and north of the Philippines occupying an
estimated surface area of 2 million mi? (5 million km?)on the western part of the North Pacific
Ocean. It is bordered by the Philippine archipelago (Luzon, Samar, Leyte and Mindanao) on the
southwest;
Palau, Yap, and Ulithi (of the Carolines) on the southeast; the Marianas, including Guam,
Saipan, and Tinian, on the east; the Bonin and Iwo Jima on the northeast; the Japanese islands of
Honshu, Shikoku, and Kyushü on the north; the Ryukyu Islands on the northwest; and Taiwan in
the west.
The islands are divided into three groups: Luzon, Visayas, and Mindanao. The Luzon islands
include Luzon island itself, Palawan, Mindoro, Marinduque, Masbate, and Batanes islands. The
Visayas is the group of islands in the central Philippines, the largest of which are: Panay, Negros,
Cebu, Bohol, Levte and Samar. The Mindanao islands include Mindanao itself, plus the Sulu
Archipelago, composed primarily of Basilan, Sulu Island, and Tawi-Tawi.

Spratly’s Island

The Spratly Islands are a disputed group of more than 750 reefs, islets, atolls, cays, and
islands in the South China Sea. The archipelago lies off the coasts of the Philippines, Malaysia,
and southern Vietnam. Named after the 19 th century British explorer who sighted them in 1843,

18
Richard Spratly, the islands contain approximately 4 km' (1.5 m ₽ of actual land area spread over
a vast area of more than 425.000 km? (164.000 mi?).

The Spratly Islands contain almost no significant arable land and have no indigenous
inhabitants, although 20 of the islands including Taiping island are considered to provide
sustainable conditions for human life. Natural resources include fish, and guano as well as
potential oil and natural gas reserves.

Modes of Acquiring Territory

The traditional modes of acquiring territory of a state are: (a) discovery, (b) occupation, (c)
prescription, (d) cession, (e) annexation, (f) conquest, (g) accretion and (h) avulsion.

Discovery - is the oldest method of acquiring title to territory. However, discovery alone would
not suffice to establish legal title. It is necessary that the discovered area must be physically
occupied. Related to title by discovery is the hinterland doctrine or the principle of continuity. If
a state has made a settlement, it has a right to assume sovereignty over all adjacent vacant
territory, which is necessary to the integrity and security of the settlement.

Occupation - is the intentional acquisition by a state over a territory which at the time of claim
not under the sovereignty of any state. There are two requirements: (1) the territory subject of
claim must not be under the sovereignty of any state (terra nullius); and (2) the state must have
effectively occupied the territory, that is, the state claiming the territory must have exercised
immediate occupation (corpus occupandi) on the territory after it displayed its intention to
occupy (animus occupandi).

There are two elements of effective occupation. One is the intention and will to act as
sovereign (animus), and two is the peaceful and continuous display of state authority (factum).
The intention can be displayed from the simple fact of publishing notices of sovereignty in
various state journals or issuing laws on territorial assertions. The display of state authority must
be peaceful and continuous. Mere protests from rival claimant states do not lose the peaceful
character of the display of state authority. However, consistent protests over a long period of
time if not rebutted by the claimant state may disturb the peaceful character o the display of state
authority. The continuous display of state authority encompasses two ideas: (1) that the display
of authority is ongoing; and (2) the display of state authority must exist up to the "critical date".
The critical date in a territorial dispute is the date on which the location of territorial sovereignty
is decisive. Normally it is the date of the origin of the dispute. The state which can present an
effective title in the period immediately preceding the critical date has the superior claim.

Prescription - means continued occupation over a long period of time by one state of territory
actually and originally belonging to another state. There are four requirements of prescription:
(a) the possession must be exercised in the form of actual exercise of sovereign authority; (2) the
possession must be peaceful and uninterrupted; (3) the possession must be public; and (4) the
possession must be for a long period of time. The peaceful and continuous display is also an
essential element although as compared to occupation, prescription requires a stricter proof and

19
longer period of the display of authority. Moreover, any protest or objection by the losing state
destroys the peaceful display of authority of the claiming state.

Cession - is the transfer of territory usually by treaty from one state to another. Concomitant of
transfer of territory is the transfer of sovereignty from the owner state to another state. And since
cession is a bilateral transaction, the parties involved are states. Cession may also be in the form
of exchange of territory or in the form gift or donation or devise.

Conquest - is acquiring territory by the use of force. The practice before was after conquest, the
conqueror annexed the conquered territor to his state. Thus, conquest first takes place followed
by annexation. But with the establishment of the United Nations, conquest is no longer
acceptable in the international community.

A state may also increase or decrease its territory through accession and avulsion.
Accession is the attainment of sovereignty over new land due to slow movement of natural
forces. Example of this is the gradual movement of a river bed. On the other hand, if the natural
forces happened suddenly, like creation of an island in territorial waters due to volcanic eruption,
it is referred as avulsion. As stated in a previous chapter dealing with a State, a territory is one of
the fundamental elements of statehood. Without a territory, an entity cannot be a State. The
notion that a State occupies a definite portion of the earth within which it exercises, subject to the
limitations of International Law, its exclusive authority to the exclusion of other States lies at the
basis of International Law.] The exercise of such a supreme authority by a State over its own
territory is known in International Law as "territorial sovereignty".

Notably, the concept "territorial sovereignty" is confused with the concept "jurisdiction".
Some have used the two concepts interchangeably. However, there is a distinction between the
two concepts. Territorial sovereignty signifies ownership and possession of a territory, which
entitles a State to exercise its authority and jurisdiction over the territory. Jurisdiction justifies
competence to affect peoples, properties and events within a territory.
Because "territorial sovereignty" and "jurisdiction" are two legal concepts connected to territory
and can only be understood in relation to territory, therefore, in the following two sections
"territorial sovereignty" and modes of acquiring territory are dealt with. While "jurisdiction" will
be the subject of the next chapter.

Modes of Acquiring Own Territory

Territorial Sovereignty

Sovereignty in regard to a territory is known as territorial sovereignty. Territorial

Sovereignty is the right of a State to exercise over its own territory, to the exclusion of any other
States, the functions of a State. it has a positive and a negative aspect. The first aspect relates to
the exclusivity of the right of the State with regard to its own territory, while the second aspect
refers to the obligation to protect the rights of other States.

A State exercises its territorial sovereignty within its boundary. Boundary is an imaginary
line that delineates the territorial limit of a State. Boundaries are of three dimensions. They

20
include the State land and the maritime domain of its internal waters and territorial sea, the
airspace and its subsoil. They are either natural topographical, having physical distinguishable
features such as mountains, rivers or lakes, or imaginary and artificial such as lines of attitude
and longitude, surveyor lines or posts. Both types have equal legal effects and usually based
upon treaties or historical title.

The sovereignty of a coastal State extends, beyond its boundaries, over its contiguous
zone, over its continental shelf and over its exclusive economic zone. Moreover, the sovereignty
of State whether coastal or landlocked extends over its national vessels. The sovereignty of a
State extends also to its national aircrafts.

The right to territorial sovereignty enables a State to exercise the fullest measures of
sovereignty powers over its land territory, large measures over its territorial waters and air space,
and smaller measures over its continental shelf and adjacent area. In addition, it enables a State
to exercise sovereignty over vessels and aircrafts that fly its flag or carry its nationality, which
are treated as its territory.

Corollary to the rights generated from territorial sovereignty, there are duties imposed
upon a State. These duties involve the obligation to protect within its territory the rights of other
States, together with the rights that each State may claim for its nationals in foreign territory.
Many treaties and conventions have been concluded to regulate State sovereignty over land, sea,
airspace and outer space. Over airspace and outer space, there are the 1914 Convention on
International Civil Aviation (the Chicago Convention), the 1963 Treaty Banning Nuclear
Weapon Tests in the Atmosphere, in Outer Space and under Water, [ and the 1967 Treaty on
Principles Governing the Activities in the Exploration and Use of Outer Space including the
Moon and Other Celestial Bodies (the Outer Space Treaty).

Over the sea, there is the 1982 Convention on the Law of the Sea, which replaced the
1956 Conventions related to the Territorial Sea and the Contiguous Zone, the High Seas, the
Continental Shelf, and Fishing and Conservation of living Resources of the High Seas. In
Addition, there is the 1959 Antarctica Treaty.

Since the rights generated from the concept of territorial sovereignty can only be
exercised in relation io a territory, it is necessary to know how a territory can be acquired.

Article II

Declaration of Principles and State Policies

Principles and Policies:

1. Recognition of the aid "Almighty God",
2. Recognition that the Principles is a democratic and republican.
3. Acceptance of the principle of international law and renunciation of war as an
instrument of national policy.
4. Civilian supremacy over the military

21
 5. The duty of the government to serve and protect the people and the duty of the people
defend the state.
6. Separation of Church and the state.
7. The pursuit of an independent foreign policy
8. Freedom from the nuclear weapons when consistent with the national interest.
9. Promotion of the social order by freeing the people from poverty.
10. Promotion of Social justice
11. Respect the value of dignity of every human person and his human rights.
12. Recognition of the sanctity of the family as a basis social institution.
13. Recognition of role of the youth nation-building.
14. Recognition of the role of women in nation-building.
15. Promotion of health consciousness among the people.
16. Recognition of the right of the people to balanced and healthful ecology
17. Priority of education, science, technology, arts and culture.
18. Guaranty of employment.
19. Development of an independent economy effectively controlled by Filipinos.
20. Recognition of the role of private sector and encouragement of private enterprise.
21. Promotion of rural development and agrarian reform.
22. Promotion and development of the indigenous cultural minorities.
23. Encouragement of non-governmental and sectoral organization to promote welfare of
the nation.
24. Recognition of the vital role of communication in nation building.
25. Autonomy of local government.
26. Guarantee of political opportunity to everyone and prohibition o political dynasties.
27. Maintenance of an honest public service and the eradication of graft and occupation.
28. Implementing of public discourage involving public conflict of interest.

Article II – known as the political creed of the nation.

- is the statement of the basic ideological principles that underlie our constitution
and shall be basic guide in the implementation of the provision of the constitution
.
Section 1. Features and explanation:

Republican Government - is a democratic government by representatives chosen by the people

at large.
Sovereignty - implies the supreme authority to govern
- The supreme power to command and enforce obedience

Manifestations of a Republican State

1. The existence of the bill of rights

2. Observance of the rule of the majority
3. Observance of the principle that ours is a government of law and not of men
4. The presence of elections through popular will
5. Observance of the principle that the legislative department cannot pass irreparable laws

22
 6. Observance of the principle that the state cannot be sued without its consent
7. Observance of the principle of separation of powers
8. The Observance of the law on public officers and their accountability to the people
9. Guarantee of equal access to opportunities for public service
10. Observance of the system of checks and balances as well as the blending of powers
11. Recognition initiative, referendum and recall

Section 2. Features and Explanations:

1. As a consequence of this provision, the Philippines abide by the principles of the United
Nations Charter to "refrain in their international relationship from the threat or use of
force against the territorial integrity or political independence of any slate".
2. However, this provision does not prohibit of country from defending itself against
aggression by another country.
3. Because of the adoption of the principles of international Law as part of the law of the
land the following are observed here in Philippines.
a. Diplomatic envoys are accorded protection, privileges and immunities
b. The right of an alien to be released on bail while awaiting deportation when his
failure to leave the country is due to the fact that no country will accept him.
c. The right of a country to establish military commission to try war criminals
d. The Vienna convention on road signs and signals (the use of Early Warning
Device - EWD)
e. The duty to protect the premises of embassies and legations
f. The provisions of the Universal Declaration of human rights are recognized
g. The right of extradition is recognized
h. Law of Trademarks is recognized and implemented
i. International usages are given effect
4. However, the Constitution of the Philippines prevails over any international treaty,
whenever they are in conflict.

Doctrine of Incorporation

Every state is by reason of its memberships in the Family of Nations, bounded by the
generally accepted principles of the international law, which are considered to be automatically
part of its own laws.

By the virtue thereof, and particularly since it is expressly affirmed in our Constitution, our
Supreme Court has applied the rules of International Law in the decision of a number of cases
notwithstanding that such rules had not been previously converted to statutory enactments.

Section 3. Features and Explanation:

1. The supremacy of civilian authority over the military at all times even during war time is
inherent in a republican state, the sovereign people being civilians.

23
 2. This provision is a safeguard against a military take-over of the government and
subsequent military dictatorship.
3. There is a need of an express declaration in the present Constitution that the prime duty
of the Armed Forces is to protect the people and the State due to the experience of the
nation during the time of Martial Law under ex-President Marcos when the military was
accused of several human rights abuse and the military were favored in various ways.

Section 4, Features and Explanations:

Conditions for rendering military or civii service:

1. It is for the defense of the state

2. It is compulsory, not optional
3. It is personal and direct which cannot be fulfilled by means of money substituted by other
means.
4. It must be in accordance with the provision of law to preclude abuse by the authorities
5. One may choose between military and civil service such as service under the medical
team or working in ammunitions department.

Section 5. Features and Explanations (self-explanatory)

Section 6. Features and Explanations:

The separation of Church and the State means that the church should not interface in the
internal affairs of the State; purely political matters or the temporal aspects of man's life that is
within the competence of the State; and the State should not also interfere with purely doctrinal
matters of the Church nor with purely ecclesiastical matters.
However, the exact demarcation line as to the competence of either is not very clear in some
cases. Examples:
a. Did Cardinal Sin overstep the demarcation line when he espoused the resignation of the
President Estrada said so publicly for having the lost of moral ascendancy to rule?
b. Can the municipal government make chapel or a shrine to the "Tesoro" and hold a nine-
day novena within the municipal plaza in honor of the same? The separation of church
and State was originally, and quit adequately, express in the bill of rights providing that
"no law shall be respecting an establishment of religion or prohibiting the free exercise
thereof". It is now rendered more emphatic by the said Section 6, which says that the
separation shall be? "inviolable". The rational of the rule summed up in the familiar
saying. "Strong fences make good neighbors". The idea is to delineate the boundaries
between the two institutions and thus avoid encroachments b one against the other
because of a misunderstanding of the limits of their respective exclusive jurisdictions.
The demarcation line calls on the entities to "render before unto Caesar the things that are
Caesar's and unto God the things that are God's". The doctrine cuts both ways. It is not
only the State that is prohibited from interfering in purely ecclesiastical affairs; the
Church is likewise barred from meddling in purely secular matters. And the reason is
plain. A union of Church and State, as aptly remarked," tends to destroy government and
to degrade religion". It is also likely to result in a conspiracy, well night irresistible

24
 because of its composite strength, against the individual's rights to worship. The wall of
separation between Church and State is not wall of hostility. The State in-fact recognized
the beneficent influence of religion in the enrichment of the of the nation's life. "In so far
as it instills into the mind the purest principles of morality", so said Justice Laurel, "the
influence of religion is deeply felt and highly appreciated" by the state.

Observed Principles of the separation of State and the Church:

1. That the State shall have no official religion

2. That every person is free to follow any religion
3. That every religious minister shall be free to practice his calling
4. The State shall give no special aid or favor to any particular sect or religion
5. That property shall not be used for the benefit of any sectarian organization or minister
6. That religion shall not be used as basis for grant of any right to any person by the
government nor shall it be required as a qualification for holding office or for exercising
right to vote or other similar political rights
7. The separation of church and state shall be inviolable

Section 7. Features and Explanations:

1. "Foreign policy is the basic directions underlying the conduct by a State of its affairs vis-
à-vis those of other States".
2. An independent foreign policy is one which is not dedicated by another state, nor is it
subordinate nor subject to another government. In order to have one, it does not mean
that one has to abandoned one's traditional allies, nor does it mean ruling out the
possibility of security arrangement with another country or group of countries.
3. As pointed out in the Constitutions, of paramount consideration as regards foreign policy
are: national sovereignty, territorial integrity, national interest, and the right to self-
determination.

Section 8. Features and Explanations:

1. What is the aim of the provision? it is to protect the interest of the Filipino people, their
survival in case of nuclear war. Thus, this provision prohibits the storage of nuclear
weapons in the country, the transit of any nuclear-bearing vessels or aircraft, and the
dumping of nuclear wastes here.
2. This provision does not prohibit the development of nuclear energy for peaceful means,
such as generation of power or for medical and other purposes.
3. The prohibition, however, is not absolutely as interpret by a classificatory resolution and
approved by Constitutional Commission by Silence. This means that if rational interest
dictates some exception to his provision, the President may determine so subject to any
legislative measures implementing this section.

25
 4. Senator Arturo Tolentino however interprets this provision as an absolute banning of
nuclear weapons. (Manila Bulletin, July 28, 1988)

Department of Foreign Affairs (DFA) - is the primary agency of the government whose duty is
to assist the President in foreign policy planning and formulation in the conduct of foreign
relations.

Section 9. Features and Explanations:

1. As enunciated in the Preamble of creating a "just and humane society" where aii these
citizens are living a life worthy of human beings, the Constitution aims to free all citizens
from the abject property and dehumanizing want.
2. This is expounded again in Art. XII, Sec. 1, par. 2 And Art XIlI, Sec. 3, par 1.

Types of Services:

1. Protective Services - maintenance of defense, peace and order, enforcement of laws,

protection of life, poverty and liberty, protection of labor, working men and tenants.
2. Economic development services - the conversation of our ecology, natural resources,
promotion of industry and commerce, improvement of transportation and
communications economic planning and coordinates.
3. Social services - such as education, cultural, scientific, health and recreation services,
social welfare services (i.e. housing project, urban development) community
development and others.

Section 10. Features and Explanations:

Social justice - is the idea society to be attained by the promotion of the weifare of the peopie
through the humanization of laws and the equalization of social economic forces and benefits.

Implementing Principles of Social justice:

1. The equal protection clause

2. Due process clause
3. Against imprisonment for non-payment of debt and involuntary servitude
4. Against excessive bail or fines
5. Free access to the courts
6. Free public education in elementary and high school levels
7. Implementation of the agrarian and natural resources reform
8. Implementation of urban land reform and housing
9. Maintenance of Health
10. Protection of labor
11. Protection of women
12. Promotion of human rights

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Section 11. Features and Explanations: Constitutional measures in protecting
human rights

1. Strengthening the Bill of Rights

2. Creating the Commission on Human Rights
3. Providing as a state policy full respect for human rights
4. Emphasizing the proper role of the military
5. Prohibiting private armies and dissolving the ICHDF

Note: Article XIlI on Social Justice and Human Rights expands on this section and the rests of
the provision of Article Il are self-explanatory.

Article II

Bill of Rights

Bill of Rights - It is the formal declaration and enumeration of the civil and political rights of the
people guaranteed by the state.
- It is the charter or liberty
- It is a list of the rights and privileges which individuals enjoy and which cannot
be violated by the government or any public officer.

Classes of Rights:

1. Natural Right - They are those rights possessed by every citizen without being granted
by the state for they are conferred upon him by God as a human being so that he may live
a happy life. (Life. Love)
2. Constitutional Rights - they are those rights which are conferred and protected by the
Constitution.
3. Statutory Rights - They are those rights which are provided by laws promulgated by the
law-making body and consequently maybe abolished by the same body. (right to receive
minimum wage and right to inherit property.)

Classifications of Constitutional Rights:

1. Political Rights - They are such rights of the citizens which give them the power to participate
directly or indirectly in the establishment or administration of the government.

a. Rights of citizenship
b. Right of suffrage
c. Right to information on matters of public concern
d. Freedom of Speech
e. Freedom of the press
f. Right of assembly

27
 g. Right to petition the government for redress of grievances
h. Free access to public records and documents
i. Right form association

2. Civil rights - they are those rights which the law will enforce at the instance of private
individuals for the purpose of securing to them the enjoyment of their means of happiness

a. Right against involuntary servitude

b. Against imprisonment for non-payment of debt
c. Freedom of Speech
d. Freedom of the press
e. Freedom religion
f. Right against unreasonable searches and seizures
g. Privacy of communication and correspondence
h. Right to travel
i. Liberty of abode
j. Non-impairment of contracts
k. Free access to the courts
l. Rights to form association
m. Freedom of assembly
n. Right to petition the government for redress of grievances
o. Right of privacy
p. Right to information on matters of public concern

3. Social and economic rights - They include those rights which are intended to insure the well-
being and economic security of the individuals.
a. The right of property
b. Right to just compensation for private property taken for public use
c. Promotion of social justice
d. Protection of the utilization of natural resources
e. Promotion of education

4. Rights of the accused - They are the rights intended for the protection of a person accused of
any crime.

a. Right to due process

b. Right to Speed disposition of cases
c. Right to bail
d. Right o be informed of his right to remain silent
e. Right to have competent and independent counsel
f. Right against torture, force, violence, threat, intimidation which violate his free will
g. Right not to be detained in secrete detention center, places or to be
solitary/incommunicado
h. Right to be presumed innocent until the contrary is proved
i. Right to be heard by himself and by counsel

28
 j. Right to be informed of the nature and cause of the accusation against him
k. Right to have speedy, impartial public trial
l. Right to meet witnesses face to face
m. Right to have compulsory process io secure the attendance of witnesses and the
production of evidence
n. Right against self-incrimination
o. Right to have privilege of the writ of habeas corpus
p. Right against cruel and unusual punishment
q. Right against excessive fines
r. Right against double-jeopardy
s. Right against ex post facto law
t. Right against bill of attainder

Section 1. Features and Explanations:

Due Process of law - it is the law that hears before it condemns that proceeds judgment only
after
judicial trials.
- Fair play
Equal Protection - signifies that all persons subject to legislation shall be treated alike under
like circumstances both on the privileges conferred and liabilities imposed

Purposes of Due Process:

1. To prevent improper government encroachment against individual's life, liberty or to
property.
2. To prevent arbitrary exercise of government powers
3. To prevent unjustified confiscation of property

Aspects of Due Process:

1. Procedural due process
2. Substantive due process

Persons - Embrace all-natural persons within the territorial jurisdiction of the Philippines
irrespective of race, sex, color, or nationality.

Kinds of Persons:
1. Natural person
2. Juridical person

Hearing - means that a party should be given a change to adduce his evidence to support his side
for the case and that the evidence should he taken into account in the adjudication of the case.

Life - is more than a animal existence. It includes the limbs and faculties which life is enjoyed.

29
Property - embraces everything over which a man may have exclusive dominion (Title
ownership)
control and possession.
- Refers to the thing itself.

Liberty- is the freedom of the people to do right and never wrong (Mabini). It includes the right
of the citizen to be free to use his faculties in all lawful ways.

What is Due process?

There is no strict definition of due process. However, it has been variously described as:
a. "A law which hears before it condemns, which proceeds upon inquiry and renders
judgment on after trial" (Darmounth College vs. Woodward. 4 Wheaton 518)
b. "Responsiveness to the supremacy of reason, obedience to the dictates of justice" (Ermila
Malate Hotel & Motel Operations Association vs. City of Manila, 20 SCRA 849)
c. "The embodiment of the sporting idea of fair play"

Two aspects of Due Process:

1. Substantive Due Process. It requires that the law made by the government must be
reasonable. In order to be reasonable, it must have the following requisites:
a. The interests of the public, in general, as distinguished from those of a particular class,
require the intervention of the state.
b. The means employed are reasonably necessary for the accomplishment of the purpose,
and not unduly oppressive on individuals.
2. Procedural Due Process. This refers to the method or manner by which the law is enforced.
Its basic elements are notice, opportunities to the heard, and jurisdiction.

Requisites for Judicial Procedural Due Process:

a. An impartial court or tribunal clothed with judicial power to hear and determined the
matter
before it:
b. Jurisdiction is properly acquired over person of defendant and over property which is the
subject matter of proceeding;
c. Opportunity to be heard;
d. Judgment rendered upon lawful hearing and based on evidence adduced.

Requisites for Criminal Due Process:

a. Accused has been heard in court of competent jurisdiction;

b. Accused is proceeded against under the orderly processes of law;
c. Accused is given notice and opportunity to be heard;

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 d. judgment rendered within authority of constitution law. (Mejia vs. Pamaran 160 SCRA
457)

Requisites for Administrative Procedural Due Process:

a. Right to a hearing which includes the right to present one's and present evidence in
support thereof;
b. The tribunal must consider the evidence adduced;
c. The decision must have something to support itself;
d. The evidence must be substantial;
e. The decision must base on evidence adduced, or at least contained in the records and
disclosed to the parties;
f. The decision must be based rendered by an independent tribunal or judge;
g. The tribunal should in all controversial questions, rendered its decision in such a manner
so that parties can know the various issues involved and reason for the decision. (Ang
Tibay vs. CIR, 60 Phil.935)

Equal Protection of the laws:

1. The means that "all persons or thing similarly situated should be treated alike, both as to
rights conferred and responsible imposed". Citizens and aliens are covered by the equal
protection clauses of the Constitution as regards all civil rights. However, aliens do have
not the same rights as citizens as regards their political rights. Juridical persons are
covered by the equal protection clauses but only as regards their property.
2. This does not mean that ail kinds of classification or division are no justifiable. However,
for a valid classification or division, the following requisites must concur;
a. The classification must be based on substantial distinction:
b. It must be germane to the purpose of the law;
c. it is not confined to existing conditions only;
d. It must apply equally to all members of the same class.

Section 2. Features and Explanations:

Search warrant - is an order in writing issued in the people of the Philippines, signed by the
judge and directed to another officer, commanding him to search for personal property and to
bring it before the issuing officer.

Requirements for a valid issuance of a warrant:

1. It must be issued upon probable cause

2. The probable cause must be determined personally by the judge
3. Such determination of the existence of the probable cause must be after examination by
the judge of the complainant and the witnesses he may produce.
4. The warrant must particularly describe the place to be searched and the persons or things
to be seized.

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Exceptional cases:
Search and arrest may be made without warrant;

1. Search made incidental to a lawful arrest.

2. Search of moving vehicle or in case of contraband forfeited goods in transit.
3. Seizure of evidence in pain view.
4. When he gives consent to the search or arrest or others is a waiver thereof
5. I the lawful exercise of police power lie. incident of inspection, supervision and
regulation of restaurants, theater, business, etc).
6. Routinely searches (i.e. enforcement of customs, immigration laws, pre-flight inspection).
7. Arrest under sec. 6, Rule 113, New Rules of Court

Section 6, Rule 113 New Rules of Court: A peace officer or a private or a private person may,
without warrant, arrest a person when;

1. When in his presence, the person to be arrested has committed, is actually committing, or
is about to commit an offense;
2. When an offense has in fact just been committed and he has knowledge/facts indicating
that the person to be arrested has committed it;
3. when the person to be arrested is a prisoner who has escaped from a pane establishment
or place where he is serving final judgment or temporarily confined while his case is
pending or has escaped while being transferred from one confinement to another.

Probable Cause - refers to the facts and circumstances antecedent o the issuance or warrant.

Section 3. Features and Explanations:

Right of Privacy - The right to be alone.

- The right of person to be free from unwarranted publicity.
- The right to live without unwarranted interface by the public in matters with
which the public is not necessarily concerned.
Question: Under what circumstances can privacy of communication and correspondence
be validity violated?
Answer: 1. Upon awful order to the court.
2. When public safety or order requires otherwise as may be provided by law.
Question: A husband filed a petition for annulment of marriage of the ground of
psychological incapacity of the wife, can he testify on a confidential psychiatric evaluation report
on the wife?
Answer: Yes. The husband can testify without violating the privileged communication
rue. The doctor of the wife, however cannot without violating the privileged communication rule
unless the wife gives permission to do so
.
The EXCLUSIONARY RULE applies under this section in such a way that any evidence
obtained violation of his section cannot be used in any judicial proceeding as the "fruit of a
poisoned tree."

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Section 4. Features and Explanations:

Freedom of Speech and the Press - implies the right to freely utter and published whatever the
citizen may please and to be protected against any responsibility for so doing except so far as
such publication from their blasphemy, obscenity, or scandalous character may be public offense
(oral defamation or libel) or by the falsehood a malice they may injuries affect the standing,
reputation or pecuniary interest of an individual.
- Includes every form of expression, whether oral, written, tape or disc recorded.

Libel- is a public and malicious imputation of a crime or of a vice or a defect, real or imaginary,
or an any act, omission, condition, status or circumstances tending to case the dishonor, discredit,
or contempt of a natural or juridical person or blacken the memory one who is dead.

Assembly - means the right on the part of the citizen to peaceably for consultation is respect to
public affairs.

Petition - means that any person or group of persons applying without fear of penalty, to the
appropriate branch of office of the government for redress of grievances.

Freedom Assembly - freedom to be together to discuss and consent on matters of mutual

interest.

Question: What is the basis of the freedom of expression?

Answer: The basis of this provision on freedom of expression is that our society is a
democratic society, society wherein the question on who will rule is ultimately based on public
opinion. However, this is impossible unless everyone is allowed to speak out their mind and
compete in the tree market place of ideas.
Question: Is the freedom of expression absolute?
Answer: No. It is subject to the police power of the state which has the duty to protect
public peace, moras, heath, order, safety and general welfare.

The means variously used to test the validity of government interference with the freedom of
expression are:
1. Clear and Present Danger Rule.
- "The substantive evil must be extremely serious and the degree of imminence
extremely high before the utterances can be punished."
- The danger created must be traceable to the ideas expressed.
- The burden of proving the clear and present danger lies on the government
authority.
2. Dangerous Tendency Rue. If the words uttered create a dangerous tendency of an evii
which the state has the right to prevent, then such words are punishable.
(Cabansag vs. Fernandez, 102 Phil. 152)
3. Balancing the Interest Test. "When a particular conduct is regulated in the interest of
public order, and the regulation result in an indirect, conditional, partial abridgment of
speech, the duty of the courts is to determine which of two conflicting interest demands

33
 the greater protection under the particular circumstances presented" and, accordingly, the
court may punish the utterances or enjoin the regulation thereof. (American
Communication Association vs. Douds 339 U.S. 282)

Section 5. Features and Explanations:

Religious freedom - is the right of a man to worship God.

SCOPE OF THE NON-ESTABLISHMENT CLAUSE
- The state cannot set up a church.
- The state cannot pass laws which aid one religion or prefer one over another.
- The state cannot influence a person to do to or remain away from any church
against his will.
- The state cannot force anybody to profess a belief in any religion.

ASPECTS OF FREEDOM BELIEF AND WORSHIP

- As regards freedom to believe, this freedom absolute and without limitation, after all beliefs is
internal and therefore not subject to any regulation especially that of the State.
- As regards the freedom to act on one's belief, this subject is to the regulation of the state. Thus,
such action, as any other action is subject to the laws of the state. The state may regulate such
expression under the clear and present danger of some substantive evil which the state is duty
bound to prevent on the ground of the serious detriment to the public interest of public
health, public morals or public welfare

Section 6. Features and Explanations:

Liberty of above and travel - means the right of a person to have his home in whatever places
is chosen by him and thereafter to change it at will and to go where he pleases, without
interference from any source.

Section 7. Features and Explanations: (SELF EXPLANATORY)

Section 8. Features and Explanations:

Rights of Workers:

1. Right to self-organization
2. Right to collective bargaining
3. Right to collective negotiation
4. Right to peaceful and concerted activities including the night to strike
5. Right to security of tenure
6. Right to just and humane condition of work
7. Right to a living wage
8. Right to participate in policy and decision-making process

Section 9 & 10. Features and Explanations:

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 Three (3 inherent powers of the state:

1. Police Power - is the power of the state to enact laws or regulations in relation to person
and properties as may promote public health, public morals, public safety and the general welfare
and convenience of the people.
2. Power of Taxation - is the power of the state to impose a charge or burden upon
persons, property, or property rights for the use and support of the government in order to
discharge its appropriate functions.
3. Power of Eminent Domain-is the power of the state to own or acquire property.
- The authority of the state to take private property for the public use.

Impairment - refers to anything that diminishes the efficacy of a contact.

Limitation to The Freedom Contract

1. Police Power - Pre-existing can yield to the reasonable exercise of police power especially with
reference to the promotion of social justice.
2. Power of Eminent Domain- may impair contracts. However, social justice cannot be
invoked top trample on the nights of property owners who are also entitled
to protection. (Salonga vs. Farrales, 10 5CRA 359)
3. Power of Taxation - The guarantee against impairment of contact will not serve as a limitation
to the power of the government to impose taxes.
4. Freedom of Religion – In Cictoriano vs. Ellizalde Rope Worker’s Union, 59 SCRA 54, the
Supreme Court has ruled that the free exercise of the religious belief is superior to contractual
rights.
5. Reservation Clause in the Constitution - Sec. 11 of Article XII of the constitution provides the
operations of public utilities gives the government the right to amend, alter repeal franchises
granted by it, they being only privileges and not property rights.

Section 11. Features and Explanations:

- Sec 22, Rule 3 of the Rules of Court provide "A court may authorized a litigant to prosecute his
action or defense as a pauper a proper showing that affect by affidavits, certificate of the
corresponding provincial, city or municipal treasurer, or otherwise. Such authority once given
small include an exemption from payment or legal fees and from payment of legal fees and from
filling appeal bond, printed record and printed brief.

Section 12. Features and Explanations:

1. This commonly known as the Miranda doctrine which was fully incorporated in our Constitution
(Miranda vs Arizona,384 U.S 346)
2. “In-custody interrogation of accused persons” or “custodial investigation” means “any
questioning initiated by law enforcement officers after a person has be taken into custody

35
 or otherwise deprived of his freedom of action in any significant way.”(People vs. Judge Ayson,
173 SCRA 216) The rule begins to operate as soon as the investigate cases to be general inquiry
into unsolved crime, and direction in then direct interrogation question which tend to elicit
incriminating statement. (people vs. dela Cruz, G.R. No. 118866-68, September 17, 1997)
3. Custodial interrogation before or after charges have been filed, and non-custodial interrogation
after the accused has been formally charged are considered “critical pre-trial states” in the
criminal process and therefore covered by the Miranda Doctrine.
4. The right to be informed about these rights implies comprehension in particular of the accused.
Thus the degree of explanation required will necessarily vary and depend on education
intelligence and other relevant personal circumstances of the person under investigation.
5. The right to remain silent and to counsel maybe waived but not the right to the Miranda
“warning”.
6. The presumption the official duty has been regularly performed cannot prevail over the
presumption of innocence. (People vs. Taruc, 157 SCRA 178)
7. Take note of the application of the EXCLUSIONARY RULE.

Duties of a Peace Officer Following an Arrest and The Conduct of Custodial Investigation.

"At the time a person is arrested, it shall be the duty of the arresting officer to inform him
of the reason for the arrest and must be shown the warrant of arrest, if any. He shall be informed
of his constitutional rights to remain and to counsel, and that any statement he might make could
be used against him. The person arrested shall have right to communicate with his lawyer , a
relative or anyone he chooses by the most expedient means - by telephone, if possible, or by
letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is
accomplished. No. custodial investigation shall be conducted unless it be in the presence of
counsel engaged by the person arrested, by any person on his behalf or appointed by the court
upon petition either of the detainee himself or by anyone on his behalf. The right to counsel and
in writing. Any statement obtained ion violation of the procedure herein laid down, whether
exculpatory in whole or part, shall be inadmissible in evidence” (Morales vs. Ponce Enrile 121
SCRA 538)

Section 13. Features and Explanations:

1. Bail – is the security given for the release of person in custody of the law, furnished by him or a
bondsman, conditions hereinafter specified. Bail may be given in the form of corporate surety,
property bond, cash deposit, or recognizance.
(Section 1, Rule 114 of the Rules of Court)
- Upon the assumption of the bail, the sureties become in law the jailers of their principal.
(Philippine Phoenix Surety and Insurance, Inc. vs. Sandiganbayan, 149 SCRA 317)
- Recognizance – is an obligation of record, entered into before some court or magistrate
duly authorized to take it, with the condition to do some particular act, the most usual condition
in criminal cases being the appearance of the accused for trial (People vs. Abner.87 Phil. 566)
2. Conditions of the bail requirements – All kinds of bail are subject to the following conditions:
- The undertaking shall be effective upon approval and remain in force at all stages of case
until its final determination, unless the proper court directs otherwise;

36
 - The accused shall appear before the proper court whenever so required by the court of
these Rules;
The failure of the accused to appear at the trial without justification despite due notice shall be
deemed as express waiver of his right to be person on the date specified in the notice. In
such case, the trial mat proceed in absentia, and
3. The right to bail is not, however, recognized and is not available in the military as an exception to
the general rule embodied in the Bill in the Bill of Rights. (Comendador vs. de Villa, G>R No.
93177)
4. The posting of bail constitutes waiver of any irregularity attending the arrest of the accused
and the preliminary examination or preliminary Investigation (People vs. Olandag, 92 Phil. 286)
5. Standard for fixing ball -Among the factors to be considered by the judge in fixing bail are the
financial ability of the accused, the nature and circumstances of the offense, the penalty for the
offense charged, the character and reputation of the accused, his age and heath, the weight of the
evidence against him, the probability of his appearing at the trial, the forfeiture of other bonds by
him the fact that he was fugitive from justice when he arrested, and the pendency of other cases
in which he is under bond (dela Camara vs. Enage, 41 SCRA 1)
6. Bail is a matter of right when the offense charged is not punishable by death,
reclusion perpetua or life imprisonment. Upon conviction by the Regional Trial Court if an
offense not punishable by death reclusion perpetua or life imprisonment, bail becomes a matter
of discretion.

Section 14. Features and Explanations:

1. A critical component of critical due process is a hearing before an impartial and disinterested
judge. However, in order to disqualify a judge on the ground of bias and prejudice, the movant
must prove such bias by clear and convincing evidence. (Webb vs. People, G>R> No. 1277262,
July 24, 1997)
2. During the trial the right of the accused the counsel is not subject to waiver. This is so because
“even the most intelligent or educated man may have no skill in the science of law, particularly
in the rules of procedure , and without counsel, he may be convicted not because he is guilty
but because he does not know to establish his innocence.” (People vs. Holgado, 86 Phil. 752)
3. The right to speedy trial violated only when the proceeding is attending by vexatious, capricious
and oppressive delays, or when unjustified postponements of the trial are asked for and secured,
or when without cause of justifiable motive, a long period of time is allowed to elapse without
the party having his case tried. (dela Rosa vs. CS, 353 SCRA 449)
4. The right to cross examine the compliant and witnesses is a part of the accused to meet witnesses
face to face. The testimony of a witness who was not submitted to cross-examination is not
admissible in evidence. But the right to cross- examine witnesses may be waived.
5. The presence of the accused is mandatory in following:
- During arraignment and plea
- During trail, for identification; and
- During promulgation of sentence, unless for a light offense wherein the accused may
appear by counsel or a representative.
6. An accused who escapes from confinement, or jumps ball, or flees to a foreign country, loses
his standing in court, and unless he surrenders or submits himself to jurisdiction of the court, he

37
 is deemed to have waived his right to seek relief from the court, including the right to appeal his
conviction (People vs. Papalao, 197 SCRA 79)

Section 15. Features and Explanations:

1. “Habeas Corpus” – is a writ issued by a court to a person detaining another, commanding him
to produce the body of the prisoner at a designated time and place, with the day and he cause of
his caption and detention, to do, to submit in his behalf,”
2. Habeas Corpus restores the liberty of an individual subject to physical restraint.
3. It may also he availed of in case if unlawful denial of bail.
4. In the case of desaparecidos (disappeared persons) the Court referred the matter to the
Commission on Human Right, and held that burden of proof rests upon the officers who detained
them and who claim to have affected the release of the detainees.

Section 16. Features and Explanations:

1. This right extends to all citizens, including those in military, and covers the period before, during
and after the trial, affording broader prosecution than Section 14(2), of Article III, which
guarantees merely the right to a speedy trail.
2. The failure to assert this right reasonably can be interpreted as a waiver of such right.

Section 17. Features and Explanations:

1. This right is available not only in criminal prosecution but in all government proceedings
such as civil actions and administrative, and legislative investigations.
2. Mere severity does not constitute cruel or unusual punishment (People vs. Dionson, 22
SCRA 299). For this constitutional prohibition to be violated, the penalty must flagrantly
and plainly oppressive, wholly disproportional to the nature of the offense as to shock the
moral sense of the community. (People vs. Estoista, 93 Phil 647)
3. The Supreme Court in People vs. Echegaray, upheld the validity of R.A 7649, the Death
Penalty Law.

Section 20. Features and Explanations:

1. A poll tax (or person or capitation tax) is a tax of a fixed amount imposed on individual residing
within a specified territory, whether citizens or not, without regard to their property or the
occupation in which they may be engaged. (51 Am. Jur. 660) the residence tax is in nature of a
poll tax. The prohibition of imprisonment due to non-payment of poll tax is to protect the poorer
sector of our society and society and has as its historical background the imprisonment of the
poor people who cannot pay such tax during colonial days.
2. A person may be imprisoned for the non-payment of tax, since tax is not a personal debt.
3. One may be imprisoned for the violation of BP Bi. 22, the Bouncing Check Law which is
different from the non-payment of debt. “The Law is not intended or designed to coerce a debtor
to pay his debt. The thrust of the law is to prohibit, under pain of penal sanctions, the making of
worthless checks and putting them in circulation. Because if its deleterious effects on the public

38
 interest, the practice is proscribed by offense against public order.”(Lozano vs. Martinez, 146
SCRA 324)

Section 21. Features and Explanations:

1. “Double jeopardy attachment only (a) upon a valid indictment, (b) before a competent court; (c)
after arraignment; (d) a valid plea having been entered; and (e) the case dismissed or otherwise
terminated without the express consent of the accused.” (people vs. Bocar. August 10, 1985)
2. “Acquittal” is always based on the merits, that is, the accused is acquitted because the evidence
does not show his guilt beyond reasonable doubt. It is immediately final and cannot be
reconsidered. On the other hand, “Dismissal” does not decide the case in its merits or that the
accused is not guilty. It is based on the fact that the court is not a court of competent jurisdiction
or the compliant or information is not valid or sufficient in form. For dismissal to be bar under
double jeopardy, it must have the effect of an acquittal.
3. Legal jeopardy exists from the moment the accused has pleaded to the charge, the disposition of
his case thereafter being merely the consequence of the former as to constitute a bar
to another prosecution. “The issue of double jeopardy arises in three different ways, that is
when,: (a) the accused is charged with the same offense in two separate pending case, in one of
which he has validly pleaded; (b) the accused is prosecuted a new for the same offense after he
has previously been convicted or acquitted thereof or the charged therefore has been dismissed
without his consent; or (c) the prosecution makes a legally unauthorized appeal from a judgment
in the same case. The first instance is contemplated is Section 3, paragraph (h), rule
117; the second is covered by section 7 of the same Rule; and the third is governed by Section 2,
Rule 122” Regalado J, concurring and dissenting. (People vs. Pineda, 219 SCRA 1 [1993])

1. A right for something which when done was lawful,

- deprives a person accused of a crime of some lawful protection to which he has become entitled,
like former conviction or acquittal or proceeding of amnesty.
2. An ex post facto law has these characteristics:
- It is penal
- It is retroactive;
- It is prejudicial to the accused.
3. A Bill of Attainder - is a legislative act that inflicts punishment without trial. Thus, it is only
when a state applies whether to named individuals or easily ascertainable members of group in
such a way as to inflict punishment in them without judicial trial that a law becomes a bill
attainder.

Article IV

Citizenship

Citizenship – is a term denoting membership of a citizen in a political society, which

membership implies, reciprocally, a duty of allegiance on the part the member and duty of
protection on the part of the state.

Citizen - is a person having a title of citizenship.

39
 - He is a member of a democratic community who enjoys full and political rights and is
accorded protection inside and outside the territory of the state.
- is a term referring to full membership in the body politics.

The following are the citizenship of the Philippines:

1. Those who are citizens of the Philippines at the time of the adoption of this Constitution.
2. Those whose fathers or mother are citizens of the Philippines.
3. Those born before January 17 1973, of Filipino mothers who elect Philippine citizenship upon
reaching the age of majority;
4. Those who we naturalized in accordance with law.

Modes of acquiring citizenship:

1. Involuntary method: (By Birth)
a. By Jus Sanguinis - acquisition of citizenship on the basis of blood relationship.
b. By Jus Soli or Jus Loci - acquisition of citizenship on the basis of the place of birth (U.S.A.).
2. Voluntary method:
a. Naturalization - the granting of a new nationality to a person
- it is of adopting a foreigner and clothing him with the privileges of a native citizen.
b. Election – by expressing this election in a sworn statement before any officer authorized to
administer oath and filed it with the nearest civil registry accompanied by oath of allegiance to
the Philippine Constitution. The election must be made within reasonable period after reaching
majority (21) years old.
c. By marriage.
d. By repatriation.

Ways of acquiring citizenship by naturalization:

1. Direct:
a) judicial proceeding or judgments of the court - the foreigner who want to be naturalized or
become a Filipino citizen just apply for naturalization with the proper Regional Trial Court
(RTC)
b) By direct act of Congress or Special act of Legislature - in this case, the law-making body
simple enacts and act directly conferring citizenship on a foreigner.
c) Collective changes of nationality, as a result of cession or subjugation.
d) In some cases, by adoption, minors as nationals of the State where they are born.
2. Derivative: Citizenship conferred on:
a) wife of naturalized husband,
b) minor children of naturalized person:
c) Allen woman upon marriage to a national;

Qualifications for Naturalization

1. The applicant must be 21 years old of age

2. He must have resided in the Philippine for at least 10 uninterrupted years
3. He is of good moral character, and believe in the principle under lying the Philippine
Constitution, and must have conducted himself in a proper and irreproachable manner during the

40
 entire period of his residence in the Philippines in his relation with the constituted government as
well as with the community in which he is living.
4. He must own real estate in the Philippines worth not less than P5,000.00 Philippine currency or
must be have lucrative trade, profession or lawful occupation.
5. He must be able to speak and write English or Spanish and any one of the principal Philippine
languages.
6. He must have enrolled minor children of school age in any of the public or private schools
recognized by the government where Philippine history, government and civics are taught.

Disqualifications for Naturalization:

1. Opposed to organized government

2. Defend or teach the propriety of violence, assault, assassination
3. Polygamist or believer of polygamy
4. Suffering for mental alienation
5. Convicted of a crime involving moral turpitude
6. Do not mingle socially with Filipinos
7. Subject of a country at was with the Philippines
8. Citizen of a country who does not allow Filipino to be naturalized

Procedures of the application for Naturalization:

1. Filling of a declaration of intention one year prior to the filling of the petition with the office of
the Solicitor General:
2. Filling of the petition together with the affidavit of two-character witnesses who personally know
the petitioner:
3. Publication of the petition which is a jurisdictional requirement, in a newspaper of general
circulation once a week for three weeks;
4. Actual residence in the Philippines during the entire proceedings;
5. Hearing of the petition:
6. Promulgation of the decision;
7. Hearing after two years of probationary period. It must be shown that during the probation period
the applicant. 1) has not left the Philippines 2) has dedicated himself to a lawful calling or
vocation 3) not been convicted of any crime or offense 4) not committed an act prejudicial to the
country.
8. Oath taking and issuance of the Certificate of Naturalization.

NOTE:

a) Dual citizenship is not the same as "dual allegiance of citizens." The latter is proscribed by the
Constitution while the former is not.
b) Those born before January 17, 1973, of Filipino mothers, who want to elect Philippine
citizenship upon reaching the age of majority, must do so within a reasonable time "Reasonable
time as interpreted by the Supreme Court is within three from the time one has reached the age of
majority (in re: Ching)

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 Kinds of Citizens under the Constitution:

1. Natural horn citizen-those already citizens of the Philippines at the time of their birth
without performing any act to acquire citizenship, citizenship by election fails under this class.
2. Citizens at the time of the adoption of the New Constitution - they refer to those who are
considered citizens of the Philippines under the 1973 Constitution.
3. Citizenship through election - they refer to those born of Filipino mothers before January 27,
1973 who upon reaching the age of majority elect Philippine citizenship.
4. Naturalized citizens - they refer to those who were originally citizens of another country, but
who, by an intervening act (naturalization) have acquired new citizenship in a different country.

Loss of Citizenship:

1. Involuntary method;
a) naturalization in a foreign country
b) by express renunciation of citizenship
c) by subscribing an oath of allegiance to support the constitution and laws of a foreign country
d) by rendering service to, or accepting commission in the Armed Forces of a foreign country
(except under certain circumstances)
2. Voluntary method:
a) by cancellation of his certificate if naturalization by the court
b) by having been declared by competent authority, a deserter in the Philippine armed forces in
time of war.

Expatriation - the voluntary loss or renunciation of one's nationality. In time of war, a Filipino
citizen cannot expatriate himself.

Reacquisition of lost Philippine citizenship:

1. By naturalization-provided the application possess none of the disqualifications provided in the

naturalization law
2. By repatriation- by deserters of the AFP and women who lost their citizenship by reason of
marriage to an alien, after the termination of their marital status
3. By direct act of congress-by the Philippine Congress

Repatriation - effected by merely taking the necessary oath of allegiance to the Republic of the
Philippines and registering the same in the proper civil registry.

Duties and obligations of citizens:

1. To be loyal to the Republic - loyalty, we mean faith and confidence the Republic and
love and devotion to the country. The citizen must be proud of his country, its customs,
traditions, language and institution. He must share in its glories and feel sad in as
misfortunes, it is the home of our people, the seat of our affections, and the spruce of our
happiness and well-being.

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 2. To defend the slate - Men may differ and do differ on religious beliefs and creeds,
government policies, the wisdom and validity of laws, even the correctness at judicial
decisions and decrees, but in the fields of love of country, national unit and patriotism,
they can hardly afford to differ fort these are mattes in which they are mutually and
vitally interested, for to them they mean national existence or survival as a nation or
national extinction.
3. To contribute to the development and welfare of the state - they development and
welfare of the state should be the concern of every citizen for he will be the first to enjoy
the benefits thereof. Anything that affect the country and the people as a whole, indirectly
affects him individually and personally. He is affected by its ills and disorder, its growth
and stability.
4. To uphold the Constitution - the constitution is expression of the sovereign will of our
people. It is the shrine for all the hopes and visions for our nation Law ate enacted in
accordance with a for the good of all it is therefore, the duty of every citizen to defend
and respect the Constitution and obey the laws.
5. To cooperate with duly constituted authority - community living imposes obligations
ad responsibilities upon the individual the larger interest of the group and the nation that
he must serve necessarily involve his own, and he would be recreant to the claims of
those interests if he did not actively concern himself with the affairs of his government.
6. To exercise rights responsibly and with due regards for the rights of others - Society
is composed of men, each with interest if his own. In the course of life, the interest of
man conflict with those of many others. Amidst the continuous dash interests, the ruling
social philosophy should he that in the ultimate social order the welfare of every man
depends upon the welfare of all.
7. To engage in gainful work - Employment is not the obligation solely of the state. Every
citizen should consider it his own responsibility and should strive to become a useful and
productive member of society to assure not himself, but perhaps, more important, his
family a life worthy of man dignity. "The essence of fire is work”. Every citizen should
bear in mind that only by hard and sustained work can men and nations live and survive.
8. To register and vote-suffrage is both a privilege and a duty which every qualified citizen
must perform. It is through suffrage that the will of the people is expressed. The quality
of public of officials and the policies of the administration, indeed, the success or failure
of the government. depend, directly or indirectly upon the voters.

Article V

Suffrage

Suffrage - is the right and freedom of the people to vote and participate in any political electoral
exercises.

Nature of Suffrage
1. It is constitutional right and privilege, thus it cannot be withdrawn by an act of Congress.
It is not an inherent right of all citizens
2. It is a political right which the citizens can exercise their sovereignty and participate in
the administration of the government.

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 3. It is a personal night which therefore cannot be delegated by a citizen to another.

Scope of Suffrage
1. Election -It is the means by which the people choose the persons to whom they entrust the
powers of government for a definite and fixed period.
2. Plebiscite -This refers to the process by which the proposed amendment/s to or revision of the
Constitution is submitted to the people for ratification. This can be also refer to the process by
which the organization/reorganization of local government units are approved of disapproved by
the people affected thereby
3. Referendum -This refers to the submission to the people of the law passed by a legislative
body of their approval or disapproval.
4 initiative -It is the process by which the people directly propose and enact laws or propose
amendment/s to the Constitution.
5. Recall -This refers to the method by which a public officer may be removed from an elective
position before the expiration of his term by a vote of the people. The registration of a petition
signed by the required percentage of qualified voters in that government unit concerned is
necessary for a recall to take place.

Five Pillars of The Criminal Justice System

I- The Community; II-The Law Enforcement; III-The Prosecution; IV-The Courts;

and V-Corrections.

As we shall see, Our criminal justice system is composed of five pillars that function like a
chain of links. Any weakness in any of these links breaks the chain, resulting to a
breakdown of the system:

Such weakness can be caused by lack of concern on the part of people in the community, or
inefficiency and corruption on the part of the public officials composing the four (4) other pillars.

I-The Community:

The Filipino community produces our law enforcers (policemen, traffic enforcers, NBI agents,
PDEA agents, COA auditors, Ombudsman fact-finding investigators, etc.); prosecutors (DOJ and
Ombudsman prosecutors/investigators): judges (Municipal Trial Courts, Regional Trial Courts
and Sharia Courts); justices (Sandiganbayan, Court of Tax Appeals and the Supreme Court); and
correction officials and personnel (municipal jails, provincial jails, city jails, the Bureau of
Corrections [Muntinlupa] and other correctional facilities).

A rotten community will always produce rotten law enforcers, prosecutors, judges, justices and
correction officials. The spring cannot rise above its source.
Members of the community are also the victims of crimes, direct or indirect. They are also the
beneficiaries of an efficient and effective criminal justice system in the form of a peaceful and
fear-free environment.

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The community is also the greatest source of information about the commission of a crime. It is
from the community that most witnesses come, including victims and whistle-blowers.
Most crimes against property (theft, robbery, etc.) are dismissed because the victim does not
testify in court, especially when the stolen property is recovered. Hence, thieves and robbers are
set free, free again to steal and rob!

II-The Law Enforcement:

To this group belong policemen, National Bureau of Investigation agents, Philippine Drugs
Enforcement Agency agents, the Military, Bureau of Customs police, Bureau of Immigration
officers, Bureau of Internal Revenue examiners, Commission on Audit auditors, Ombudsman
fact- finding investigators, Commission on Human Rights investigators, Land Transportation
Office and Traffic enforcers, etc.

They enforce the law by ensuring compliance therewith, conduct investigations to uncover
commissions of crimes and violations of laws, file criminal cases before the prosecutor's
(fiscal's) office (if the offender is not a government employee/official) or the Office of the
Ombudsman (if the offender is a government employee/official), and testify in court if a criminal
charge is lodged in Court by the prosecutor's office or the Office of the Ombudsman.

III-The Prosecution:

To this group belong the City, Provincial and Regional State Prosecutors of the Department of
Justice, and the investigators and prosecutors of the Office of the Ombudsman.
They conduct preliminary investigations (if the respondent was not caught in the act of
committing the crime) or inquest proceedings (if the respondent was caught in the act of
committing the crime) to determine whether or not there is probable cause (reasonable ground) to
prosecute the respondent in court. If they found probable cause, they lodge a criminal charge
against the respondent before the court. Otherwise, they dismiss the case.

Once the criminal case is filed in court, the court issues a warrant of arrest against the accused (if
he was not caught in the act of committing the crime) or commitment order (if the accused was
caught in the act of committing the crime and he has not yet posted bail or the offense is non-
bailable because the crime is punishable by life imprisonment, reclusion perpetua or death).

The prosecutor ([fiscal] from the DOJ for crimes committed by non-government people, or from
the Ombudsman for crimes committed by government people, although the fiscals can prosecute
criminal cases against government people under the continuing authority of the Office of the
Ombudsman) now stands as the lawyer for the State (People of the Philippines) and prosecute
the case. The victim, the law enforcer (who investigated the crime) and other witnesses will now
testify in court. The defense counsel will defend the accused. After the trial, the court will now
decide whether or not the accused is guilty. If he is, then he shall be penalized (fine, or
imprisonment, or both). If he is not, he shall be acquitted (set free).

IV-The Courts:

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To this group belongs the Municipal Trial Courts (for crimes punishable by imprisonment not
exceeding six (6) years), the Shari'a Circuit Courts in the ARMM (for criminal violations of the
Muslim Code), the Regional Trial Courts (for crimes punishable by imprisonment of more than
six years, and appeals from the decisions of the Municipal Trial Courts), the Sandiganbayan (for
crimes committed by government officials with salary grade 27 and above regardless of the
penalty prescribed for the offense charged, and appeals from the decisions of the Regional Trial
Court in criminal cases against government employees below salary grade 27), the Court of
Appeals (for appeals from the decisions of the Regional Trial Courts in criminal cases against
non-government people), and the Supreme Court (for appeals from the decisions of the Court of
Appeals, Sandiganbayan and automatic review of decisions of the Regional Trial Courts and the
Sandiganbayan where the penalty imposed is reclusion perpetua or death).

V-Corrections:

To this group belong the various Jails (Municipal, City and Provincial Jails), the Bureau of
Corrections (in Muntinlupa) and other correctional facilities. While the criminal case is pending
in court, the accused shall be detained at the Municipal, City or Provincial Jail unless he posts a
bail bond for his provisional liberty and if the offense is bailable. After conviction, the convict
will be sent to the Bureau of Corrections to serve his sentence.
Our criminal justice being also a corrective one, the correction officials are mandated to see to it
that the convict is reformed and is able to re-integrate himself into the community after serving
his sentence.

Crimes Against Chastity

a. Elements of Adultery
1. That the woman is married (even if marriage subsequently declared void)
2. That she has sexual intercourse with a man not her husband.
3. That as regards the man with whom she has sexual intercourses, he must know her to
be married.
Notes:
1. mitigated if wife was abandoned without justification by the offended spouse (man is
not entitled to this mitigating circumstance)
2. attempted: caught disrobing a lover

b. Elements of Concubinage

1. That the man must be married.

2. That he committed any of the following acts:
1. Keeping mistress in the conjugal dwelling.
2. Having sexual intercourse under scandalous circumstances with a woman who
is not his wife.
3. Cohabiting with her in any other place.
3.That as regards the woman she must know him to be married.

Note:

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"Scandal" consists in any reprehensible word/deed that offends public conscience, redounds to
the detriment of the feelings of honest persons and gives occasions to the neighbor's spiritual
damage and ruin.

c. Elements of Acts of Lasciviousness

1. That the offender commits any act of lasciviousness or lewdness.

2. That it is done under any of the following circumstances:
1. by using force or intimidation, or
2. when the offended party is deprived of reason or otherwise unconscious, or
3. when the offended party is under 12 years of age.
3. That the offended party is another person of either sex.

d. Elements of Qualified Seduction of a Virgin

Two classes of qualified seduction:

1. Seduction of a virgin over 12 and under 18 years of age by certain persons, such as a
person authority, priest, teachers etc and
2. Seduction of a sister by her brother or descendant by her ascendant, regardless of her
age on reputation (incestuous seduction).

Elements:

1. That the offended party is a virgin, which is (presumed if she unmarried and of good
reputation.
2. That she must be over 12 and under 18 years of age.
3. That the offender has sexual intercourse with her.
4. That there is abuse of authority, confidence or relationship on the part of the offender
(person entrusted with education or custody of victim; person in public authority,
priest; servant).

Person liable:

1. Those who abuse their authority:

1. persons in public authority
2. guardian
3. teacher
4. person who, in any capacity, is entrusted with the education or custody of the woman
seduced
2. Those who abused the confidence reposed in them:
1. priest
2. house servant
3. domestic

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3. Those who abused their relationship:
1. brother who seduced his sister
2. ascendant who seduced his descendant

e. Elements of Simple Seduction

1.That the offended party is over 12 and under 18 years of age.

2. That she must be of good reputation, single or widow.
3. That the offender has sexual intercourse with her.

f. Elements of Acts of Lasciviousness with the consent of the offender party

1. That the offender commits acts of lasciviousness or lewdness.

2. That the acts are committed upon a woman who is virgin or single or widow of good
reputation, under 18 years of age but over 12 years, or a sister or descendant regardless of
her reputation or age.
3. That the offender accomplishes the acts by abuse of authority, confidence, relationship,
or deceit.

g. Elements of Corruption of Minors

Act punishable: By promoting or facilitating the prostitution or corruption of persons underage to

satisfy the lust of another.

h. Elements of White Slave Trade

Acts penalized
1. Engaging in the business of prostitution
2. Profiting by prostitution
3. Enlisting the service of women for the purpose of prostitution

i. Elements of Forcible Abduction

1. That the person abducted is any woman, regardless of her age, civil status, reputation.
2. That the abduction is against her will.
3. That the abduction is with lewd designs.

Note: Sexual intercourse is NOT necessary

Crimes against chastity where age and reputation of victim are immaterial: rape, acts of
lasciviousness, qualified seduction of sister/descendant, forcible abduction.

j. Elements of Consented Abduction

1. That the offended party must be a virgin.

2. That she must be over 12 and under 18 years of age.

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 3. That the taking away of the offended party must be with her consent, after solicitation
or cajolery from the offender.
4. That the taking away of the offended party must be with lewd designs.

k. Prosecution of Adultery, Concubinage, Seduction, Abduction Rape and Acts of

Lasciviousness

1. Adultery and concubinage must be prosecuted upon complaint signed by the offended
spouse.
2. Seduction, abduction, rape or acts of lasciviousness must be prosecuted upon
complaint signed by:
1. offended party
2. by her parents
3. grandparents
4. guardians in the order in which they are named above

Note: Marriage of the offender with the offended party extinguishes the criminal action or remit
the penalty already imposed upon him. This applies as well as to the accomplices, accessories-
after-the-fact.

l. Civil liability of persons guilty of rape, seduction or abduction

1. To identify the offended women

2. To acknowledge the offspring, unless the law should prevent him from doing so
3. In every case to support the offspring

m. Liability of Ascendants, other persons entrusted with custody of offended party who by
abuse of or confidence shall cooperate as accomplices

prove adultery existed. They are:

(1) That the accused wrongfully had sexual intercourse with a certain person;
(2) That, at the time, the accused or the other person was married to someone else; and
(3) That, under the circumstances, the conduct of the accused was to the prejudice of
good order and discipline in the armed forces or was of a nature to bring discredit upon
the armed forces.

The first element is the hardest to prove. The reason being is that the physical act of
intercourse has to be proven. Unless there is a video, credible witness of the couple in the
act, or some other concrete evidence, a confession by one of the two parties is normally
the only way to prove adultery. This does happen on occasion, but normally neither party
will confess. The second element is that the offending soldier is either married or he/she
knows the other person was married. If the soldier legitimately did not know the other
person was married, then adultery did not occur.
The third element is the easiest of the three. The Commander has to determine that the
conduct was prejudicial to good order and discipline. The fact that the Soldier was having

49
 an affair with another Soldier's spouse meets that criteria if it is known by other Soldiers
in the unit.

Even if intercourse cannot be proven, then there are other actions that can be taken. The
Soldier whose wife is having the affair can approach the command with their concerns. If
the ISG/Commander determine their concerns are legitimate, then the commander can
counsel the offending Soldier on inappropriate relationships and give the Soldier a no-
contact order for the other Soldier's spouse. Should the offending Soldier violate the no-
contact order that Soldier can be punished under Article 90, UCMJ for willfully
disobeying a superior commissioned officer.

In any event, if the offending Soldier is spoken to about the situation, who ever counsels
him/her should ensure the Soldier's rights are not violated and he/she is read their rights
using DA Form 3881, Right Advisement. If this step is skipped, any
information/confession the Soldier may provide could be thrown out as evidence for
UCMJ or courts-martial proceedings.

Crimes Against Humanity

Include any of the following acts committed as part of the widespread or systematic attack
against any civilian population with knowledge of the attack.
1. Murder
2. Extermination
3. Enslavement
4. Deportation or forcible transfer of population
5. Imprisonment
6. Torture
7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or
any other forms of sexual violence of comparable gravity.
8. Persecution against an identifiable group of political, social, national, ethnic, cultural,
religious or gender grounds.
9. Enforced disappearance of persons
10. The crime of apartheid
11. Other inhuman acts of a similar character intentionally causing great suffering or
serious bodily or mental injury.

Heinous Crime and Its Definition

Heinous Crime - is committed by one who will take it to the extreme.

- means wicked or deeply criminal.
1. Kidnapping
2. Treason
3. Plunder
4. Destructive Arson
5. Rape
6. Murder

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 7. Drug Trafficking
8. Human Trafficking

Causes of Crimes
1. Human Factors
a. Enviousness
b. Greediness
c. Vengeance
d. Hatred
2. Economic Factor
a. Unemployment
b. Hunger
3. Political Factor
a. Human rights violation
b. Social injustice

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