Con-Com 2018 Member
(5th in a series)
Q: How does the draft constitution address the problem of access to the courts by the underprivileged?
A: Apart from what the 1987 Constitution provided, the draft now grants the Supreme Court authority to compel members of the Bar to provide free legal assistance. It is will therefore no longer be a matter of goodwill or volunteerism on the part of lawyers in various organizations, such as the Integrated Bar of the Philippines, to make legal services available, but a matter of Supreme Court requirement. Notice too that the service that the court may exact of lawyers is not only court appearance but extends to such concerns as the preparation off documents and instruments.
Q: Persons under investigation are still often subjected to duress, and even torture. How does the draft deal with these threats to human dignity and liberty?
A: The guarantees of the 1987 Constitution are preserved but the draft adds a directive to Congress to provide for penal and civil sanctions. A torture victim or one who has been submitted to threat or intimidation in the exaction of a statement or a confession does not only have the right to cause his statement or confession expunged from the records and rendered inadmissible against him. He may also file an action for civil damages or criminally prosecute his tormentors.
Q; How does the right to bail under the 1987 Constitution differ from the right under the draft Constitution?
A: Under the 1987 Constitution, when a person was charged with an offense punishable by reclusion perpetua or higher and evidence of guilt was strong, he could be denied bail. Jurisprudence however interpreted this to mean that WHILE the court was determining the strength of the evidence against the accused, he was already under detention. The draft corrects this by requiring that there be summary proceedings to determine the strength of the evidence against the accused before he is denied bail. It therefore follows that before the conclusion of the summary proceedings that determine the strength of the evidence against the accused, he cannot yet be denied bail.
Q: Does one who seeks temporary liberty always need to put up a bond of cash, property or surety?
A: Under the draft, no longer, as long as the offense with which the accused is charge is one that would entitled the accused, in case of conviction, to apply for probation. in such a case, the accused may be released on recognizance— the safekeeping, custody and supervision of a responsible person recognized for his reliability and probity.
Q: Can Congress pass a law that imposes the death penalty?
A: While the draft seems to provide some avenue for the imposition of the death penalty, by Congress legislating certain crimes as heinous, the Philippines has an obligation arising out of a treaty to which it is a party, the Second Optional Protocol to the Covenant on Civil and Political Rights, not to impose the death penalty. Furthermore, any law that Congress may pass imposing the death penalty may be repealed by the people through initiative.
Q: Did the Con-Com take cognizance of the hellish condition of our prisons and detention facilities?
A: Indeed, it did, and the duty for providing human penal facilities is not constitutionally assigned to the federal government, the federated regions and the local government units. The practical significance of this is that these tiers of government can be commanded by mandamus to provide for human penal facilities where these are absent and the means for such provision are present.
Q: Has the rule on double jeopardy been amended?
A: No, in fact it has been strengthened. There being a difference between a federal law and a regional law, when an act is punished under one level of law under which one is either convicted or acquitted, no prosecution can subsequently lie on the basis of another level of law—no matter what the term, nomenclature or characterization of the act may be. The reference is to the act. However, the rewritten provision will not allow an accused to benefit from the protection against double jeopardy when the offended party is denied due process, when there is mistrial or when the trial court exceeds its jurisdiction by acting in grave abuse of discretion. In fact, these are not exceptions then, because where these are present, the accused was never in jeopardy. These exceptions do not emerge for the first time in the draft. They have been part of jurisprudence for some time now.