Professional Documents
Culture Documents
EDSA II
Legal Question
Intra-Constitutional=
the resignation of the
sitting president and
the succession by the
VP are subject to
judicial review
Exercise
of
people
power of freedom of
speech and freedom of
assembly to petition
the govt for redress to
grievances that only
affected the office of
the President.
IMPLIED WAIVER
a. when the State commences litigation,
thus opening itself to counterclaim;
b. When it enters to a contract with a
private individuals
Old rule: State is deemed to have waived
immunity, for he descends to the level of a
private individual;
New rule: Distinctions has to be made.
(Restrictive Doctrine of State Immunity)
Government Acts (acta jure imperii) =
only in this act, where immunity from suit can
be availed by the State.
The
transaction
involves
the
improvement of the wharves in the naval
installation as Subic Bay. As this was a
government function, the contract did not divest
the US of its sovereign immunity from suit. US
vs. Ruiz
The ruling was unfair, but because the
issue has become one of international law, state
immunity applies. The remedy of the private
individual is to convince the DFA to take up the
case against the govt.
A driver of a municipality engaged in the
performance of governmental function, is
exempt from liability. (damnum absque injuria)
Municipality of San Fernando La Union vs
Judge Firma.
Private, Commercial and Proprietary
Acts (acta jure gestionis)
The restaurant services offered at the
John Hay Station partake the nature of a
business enterprise undertaken by the US govt
in its proprietary function, for it is open not only
to the member of the US Armed Forces but to
the public, thus undoubtedly, it is operated for
profit as a commercial entity. US vs. Guinto
A celebration of town fiesta is not a govt
function but a proprietary one, thus, the
municipality may be held liable for the injury
suffered by one of the workers who fell while
constructing the same. The mere fact that the
celebration, as claimed was not to secure profit
or gain but merely to provide entertainment to
the town inhabitants is not a conclusive test.
Torio vs. Fontanilla
SUABILITY vs. LIABILITY OF THE STATE
Suability refers to the right of the state
to sue and be sued, while Liability merely gives
the opportunity for the govt to be sued but may
be held not liable, when it proposes positive
defenses to absolve it.
ARTICLE IV CITIZENSHIP
Retention
and
2 situations:
Retention and Reacquisition = there must be
taking an oath of allegiance on either.
Section 4. Derivative Citizenship - The
unmarried child, whether legitimate, illegitimate
or adopted, below eighteen (18) years of age, of
those who re-acquire Philippine citizenship
upon effectivity of this Act shall be deemed
citizenship of the Philippines.
STRUCTURE OF GOVERNMENT
Executive = power to implement the law (power
of the sword) Sec 1, Article VI
Legislative = power to enact, alter, amend or
repeal the law. (Power of the purse) Sec 1,
Article VII
Judicial = power to interpret the law. (Power of
judicial review) Sec 1, Article VIII
Doctrine of Separation of Powers = purpose is
to secure action, forestall over-action, to prevent
despotism and to obtain efficiency.
Principle of Checks and Balances = objective
is to avoid the concentration of powers into one
branch only. It is a system of counteraction by
means of which one department is allowed to
resist enforcement upon its prerogatives or to
rectify the mistakes or excesses committed by
any of its co-equal departments.
Potestas delegate non delegari potesta= What
has been delegated cannot be delegated:
Except: PETAL
Delegation to people through initiative
and referendum; Article VI, Sec 32,
Enactment of the implementing law of RA
6735
Delegation to the president of emergency
powers; Sec 23, par 2 Art. VI
Requisites:
1.
In times of war or other national
emergency;
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2.
For a limited period;
3.
Subject to such restrictions as Congress
may prescribe;
4.
To exercise powers necessary and proper
to carry out a declared national policy.
Last paragraph provides that there is no
need for another enactment of the law to
withdraw such powers for it hall cease upon the
next adjournment of Congress.
Delegation of tariff powers to the
president; Sec 28, par 2 Art. VI
Authorized by law enacted by Congress.
Delegation to administrative bodies;
Delegation to LGU.
Test for Valid Permissible Delegation:
Completeness Test = law must be
complete on all its essential terms and
conditions when enacted, so that there shall be
nothing left to do when it reaches the delegate
but just to enforce it;
Sufficient Standard Test = limits of the
law
are
sufficiently
determinable
and
determined to which the delegate must conform
in the performance of his functions.
The legislative standard need not be
expressed, for it can be found in other repealed
statutes or it may be simply gathered or
implied. Chiongbian vs. Orbos
ARTICLE VI LEGISLATIVE DEPARTMENT
Section 1. The legislative power shall be
vested in the Congress of the Philippines
which shall consist of a Senate and a House
of Representatives, except to the extent
reserved to the people by the provision on
initiative and referendum.
To be read in correlation with Sec 32,
where legislative must enact a law for peoples
initiative and referendum, which is RA 6735.
Q: this reservation of the people to directly
enact laws, is this self executing?
A: NO. Sec. 32 of Article VI provides that the
congress shall as early as possible, provide for a
system of initiative and referendum thus the
congress is mandated to enact that so called
initiative and referendum law.
Which the
congress has complied with the mandate by
enacting R.A. 6735 the Initiative and
Referendum Law.
Non-legislative function:
When the Congress acts as Constituent
Assembly;
Investigative power in aid of legislation;
Sec 21 Article VI
Impeachment Court;
National Board of Canvassers in
Presidential
and
Vice-presidential
elections;
Amnesty proclamations;
Declaration of State of War; Sec 23(1)
Article VI
Determination of the Incapacity of the
President to discharge his functions; Sec
11, last par Article VII
Emergency power delegated through
enactment of law; Sec 23(2) Article VI
Electoral tribunal;
Treaty concurrence; Sec 19, par 2 Article
VII
INITIATIVE Power of the people TO PROPOSE
or AMEND a law
opening
to
the
Two kinds:
Regular = Sec 15, Article VI
Section 15. The Congress shall convene
once every year on the fourth Monday of
July for its regular session, unless a different
date is fixed by law, and shall continue to be
in session for such number of days as it may
determine until thirty days before the
opening of its next regular session, exclusive
of Saturdays, Sundays, and legal holidays.
Q. What if after 15 days from the fourth Monday
of July, the Congress adjourned. Is it valid?
A. Yes. Article VI, Sec 15 provides that the
determination of the number of days is
determined by Congress, for as long as such is
30 days before opening if regular session.
(Compulsory Adjournment Session)
Special =Article VI, Sec 15 last sentence;
The President may call a special session at
any time.
Instances where Congress may meet in
special session without call by president:
Declaration of State of War; Sec 23(1)
Article VI
Determination of the Incapacity of the
President to discharge his functions; Sec
11, last par Article VII
Revocation of the proclamation of
martial law or suspension of the privilege
of the writ of habeas corpus; Sec 18
Article VII
In case of vacancy of both Pres and VP
positions, Congress enact a law calling
for a special election; Sec 10 Article VII
Impeachment Cases;
In the matter of canvassing the elections
of Pres and VP;
Q. May Congressman Jalosjos invoke the
privilege from arrest?
A. No. Jalosjos has not given any reason why he
should be exempted from the operation of the
immunity. The Congress cannot compel absent
person members to attend sessions if the reason
for their absence is a legitimate one.
8
GEN. RULE:
The Bill may be introduced either from
Senate or the House of Representatives.
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MEMBERS:
Each Electoral Tribunal shall be
composed of 9 members: HRET/ SET
JUDICIAL COMPONENT:
25 MEMBERS:
1 Senate Pres. Ex-officio Chairman
12 Senators
12 Congressmen
Congressmen and Senators are chosen
on the basis on proportional representation
from the political parties having membership in
the House or Senate.
MAIN FUNCTION:
To act on Presidential appointment.
Created to limit the power of the
President, for they confirm the nomination of
the President.
Only meet when Congress is in session,
thereby ad-interim appointments are made.
Formula for both COA and HRET/SET:
No of members/party x No of seats available
Total no of Senators/Congressmen
E.g. 10 x 12 = 5
24
E.g.
Political party
PPC
LAMP
LAKAS
LDP
Total
No. of Members
10
8
4
2
24
Seats allocated
5
4
2
1
12
12
INCOMPATIBLE OFFICE
FORBIDDEN OFFICE
Incompatible Office
One which may not be
held by a member
during his TERM of
office
WITHOUT
FORFEITING
HIS
SEAT
A member may validly
appointed
but
he
forfeits his seats
Q: is it necessary for
him to resign before
he accepts that other
office?
A: NO need to resign,
it is automatic
More of an inhibition
Forbidden Office
One
which
is
FORBIDDEN by law
even if he is willing to
forfeit his seat.
He may not be validly
appointed
More of a prohibition
Correlate
Execution
with
Doctrine
of
Faithful
Qualifications:
1. Natural-born Citizen of the Philippines
2. Registered Voter
3. Able to read and write
4. At least 40 years of age on the day of the
election
5. Resident of the Philippines for at least 10
years immediately preceding the election
Section 3. There shall be a Vice-President who shall
have the same qualifications and term of office and be
elected with, and in the same manner, as the President.
He may be removed from office in the same manner as
the President.
The Vice-President may be appointed as a Member of
the
Cabinet.
Such
appointment
requires
no
confirmation.
Example of appointment by
President where COA has no confirmation.
the
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1.
2.
3.
4.
Death
Permanent Disability
Removal from office by way of impeachment
Resignation
Nepotic Appointments
The spouse and relatives by consanguinity or affinity
within the fourth civil degree of the President shall not,
during his tenure, be appointed as Members of the
Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including
government-owned or controlled corporations and their
subsidiaries.
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LIES
IN
THE
cannot
immediately assume office, does not take effect
immediately. Wait until affirmed by the Comm.
Of Appointment.
LIMITATIONS ON THE APPOINMENT POWER
OF THE PRESIDENT:
1. Sec. 13 (2nd par)
2. Sec. 14
3. Sec 15 .exception temporary appointments
to executive positions when continued vacancies
shall prejudice public service or public safety.
Section 15. Two months immediately before the next
presidential elections and up to the end of his term, a
President or Acting President shall not make appointments,
except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or
endanger public safety.
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CONDITIONAL PARDON
Is in the nature of a contract between
the (convicted criminal) and the chief executive.
Not subject to judicial review since it is
solely within the judgment of the chief executive
which grant such conditional pardon.
Limitations (pardon)
1. N/A to legislative contempt
2. N/A to impeachment cases
3. Conviction by Final Judgment
4. N/A violation of election laws without the
favorable recommendation of the COMELEC
(Art. 9-c sec. 5)
Borrowing Power
Section 20. The President may contract or guarantee
foreign loans on behalf of the Republic of the
Philippines with the prior concurrence of the Monetary
Board, and subject to such limitations as may be
provided by law. The Monetary Board shall, within thirty
days from the end of every quarter of the calendar year,
submit to the Congress a complete report of its decision
on applications for loans to be contracted or guaranteed
by the Government or government-owned and controlled
corporations which would have the effect of increasing
the foreign debt, and containing other matters as may
be provided by law.
Informing power
Section 23. The President shall address the Congress at
the opening of its regular session. He may also appear
before it at any other time.
NOTE
Pardon is available not only to those
guilty of criminal offense but also those found
guilty of ADMINISTRATIVE offense (Llamas vs.
Orbos)
REASONS:
1, Sec. 19 Art. VII makes no distinction between
criminal and administrative offense except with
respect to impeachment.
2. if persons convicted of heinous crime where
evidence of guilt is beyond reasonable doubt are
entitled to pardon, why do we have to deny the
same to those convicted of administrative
offenses where only substantial evidence is
required.
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2nd Contention:
The MTRCB may disagree with the
criticisms of other religions by the INC but that
gives it no excuse to interdict such criticisms,
however unclean they may be.
Under our
constitutional scheme, it is not the task of the
State to favor any religion by protecting it
against an attack by another religion. Religious
dogma and beliefs are often at war and to
preserve peace among their followers, especially
the fanatics, the establishment clause of
freedom of religion prohibits the State from
leaning towards any religion. Vis--vis religious
differences, the State enjoys no banquet of
options.
Neutrality alone is its fixed and
immovable stance. In fine, the MTRCB cannot
squelch the speech of the INC simply because it
attacks another religion. In a State where there
ought to be no difference between the
appearance and the reality of freedom of
religion, the remedy against bad theology is
better theology. The bedrock of freedom of
religion is freedom of thought and it is best
served by encouraging the marketplace of
dueling ideas. When the luxury of time permits,
the marketplace of ideas demands that speech
should be met by more speech for it is the spark
of opposite speech, the heat of colliding ideas
that can fan the embers of truth. (Iglesia Ni
Cristo vs. CA)
5.
In his petition to post bail, the judge
conditioned the grant of bail to P on his
arraignment ratiocinating that if he is
granted bail without having been arraigned
first, he might jump bail and therefore, trial
in absentia may not proceed. What
constitutional rights of P will be violated by
such condition imposed by the judge on the
grant of bail to him? Explain.
To condition the grant of bail to an
accused on his arraignment would be to place
him in a position where he has to choose
between (1) filing a motion to quash and thus
delay his release on bail because until his
motion to quash can be resolved, his
arraignment cannot be held, and (2) foregoing
the filing of a motion to quash so that he can be
arraigned at once and thereafter be released on
bail. These scenarios certainly undermine the
accuseds constitutional right not to be put on
trial except upon valid complaint or information
sufficient to charge him with a crime and his
right to bail. (Lavides vs. CA)
4.
Is there a constitutional right to
privacy? Explain. What are the zones of
privacy recognized and protected in our
laws.
Yes. The essence of privacy is the right
to be let alone. In the 1965 case of Griswold
vs. Connecticut, the US SC gave more
substance to the right of privacy when it ruled
that the right has a constitutional foundation.
We adopted the Griswold ruling that there is a
constitutional right to privacy.
The SC clarified that the right of privacy
is recognized and enshrined in several
provisions of our Constitution. It is expressly
recognized in Section 3(1) of the Bill of Rights.
Other facets of the right to privacy are protected
in various provisions of the Bill of Rights, i.e.,
Sections. 1, 2, 6, 8, and 17. (Ople vs. Torres).
The zones of privacy recognized and
protected in our laws.
The Civil Code provides that every
person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and
other persons and punishes as actionable torts
several acts by a person of meddling and prying
into the privacy of another. It also holds a
public officer or employee or any private
individual liable for damages for any violation of
the rights and liberties of another person, and
recognizes the privacy of letters and other
private communications.
The Revised Penal Code makes a crime
the violation of secrets by an officer, the
revelation of trade and industrial secrets, and
6.
Discuss the various jurisdictions in
election cases and quo warranto proceedings,
including appeals.
Position
Election
Protest
30 days after
proclamation
Quo
Warranto
10 days after
proclamation
Members of
Congress
15 days after
proclamation
= SET
10 days after
proclamation
= HRET
15 days after
proclamation
= SET
10 days after
proclamation
= HRET
Regional,
Provincial,
City,
Component
City
Officials
Municipal
Officials
Within 10
days after
proclamation
COMELEC
Within 10
days after
proclamation
COMELEC
Within 10
days after
proclamation
RTC
Within 10
days after
proclamation
MTC
Within 10
days after
proclamation
RTC
Within 10
days after
proclamation
MTC
Pres & VP
Barangay
Officials
Jurisdiction
PET,
SC
sitting
en
banc.
Sole
judge = no
appeal
Art. 7, Sec 4,
par 7
SET/HRET,
sole judge =
no appeal.
Only
certiorari to
the SC
Art. 6, Sec
17
No appeal =
only
certiorari to
SC
Art IX-C Sec
2, par 2
Appeal
to
COMELEC
Certiorari to
SC
Appeal
to
COMELEC =
final
executory
not
appealable
Certiorari to
SC
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8.
A group of unarmed demonstrators,
numbering about 10,000 made up of urban
poor slum dwellers, students, senior citizens,
and several religious personalities marched
along Mendiola on their way to Malacanang.
They were carrying banners and streamers
very critical of the Arroyo administration.
Their leaders were delivering fiery speeches,
exhorting them to be very vigilant in the
protection of basic constitutional rights
which, they claimed, are significantly
trampled upon and reduced to a myth by the
present
dispensation.
After
crossing
Mendiola Bridge, they were dispersed by
police and military personnel assigned to
secure the Palace grounds with truncheons,
water cannons and tear gases, causing
injuries to several of them.
a. Applying the Dangerous Tendency
Rule was the violent dispersal of the
demonstration and the subsequent
arrest, detention and prosecution of
the leaders justified? Discuss.
The dispersal is valid.
Under the Dangerous Tendency Rule, a
mere tendency to create a substantive evil is
enough for a subsequent arrest, detention and
prosecution of a person even if the evil expected
does not result.
In the case at bar, it is plain that there is
a tendency that those demonstrators would
create a substantive evil. Thus, the presence of
such substantive evil would suffice to justify the
dispersal and the subsequent arrest, detention
and prosecution of the leaders justified.
b. What about if the Clear and Present
Danger Rule was applied?
NO, under the Clear and Present Danger Rule,
the existence of a substantive evil must be of a
clear and present danger type. This test is more
liberal.
Hence, unless there is a clear showing
that a substantive evil exist in the instant case,
the violent dispersal is not justified. It is crystal
clear that the demonstrators are only exercising
their right.
c. Distinguish
content-based
restriction on free speech from
content-neutral restrictions, and
explain the significant of knowing the
distinction?
Content-based restrictions are imposed
because of the content of the speech and are
therefore subject to the clear and Present
Danger test. An example is plebiscite to ratify
creation of Autonomous Region of Cordillera
Content-neutral - It is directed restrictions
are not concerned with the time, place of
speech. An example is the posting of campaign
materials
9.
While on board a jeepney in Quiapo,
Manila, Kumander Lawin, an obscure leader
of the NPA, was spotted by police and
military authorities upon identification by
one of his former comrades who is now a
government agent. He was arrested without
warrant.
The
authorities
immediately
proceeded to his residence in Bustillos,
Sampaloc
Manila,
and
searched
the
apartment dwelling where he resides without
warrant. Taken from his residence was a
caliber .45 pistol with several rounds of
ammunition and assorted rebel propaganda
materials. At the police station where he was
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d. During
the
pendency
of
the
extradition proceeding in the RTC,
should he be allowed to post bail so
that he can represent his constituents
who elected him as Congressman?
NO, bail may be applied for and granted as an
exception, only upon a clear and convincing
showing: (1) that, once granted bail, the
applicant will not be a flight risk or a danger to
the community; and (2) that there exist special,
humanitarian and compelling circumstances
including, as a matter of reciprocity, those cited
by the highest court in the requesting state
when it grants provisional liberty in extradition
cases therein.
e. Disenfranchisement argument.
It must be noted that even before private
respondent ran for and won a congressional
seat in Manila, it was already of public
knowledge that the US was requesting his
extradition. Hence, his constituents were or
should
have
been
prepared
for
the
14.
What is International Humanitarian
Law and how it is distinguish with Human
Rights Law?
International humanitarian law is a set
of rules which seek, for humanitarian reasons,
to limit the effects of armed conflict. It protects
persons who are not or are no longer
participating in the hostilities and restricts the
means and methods of warfare. International
humanitarian law is also known as the law of
war or the law of armed conflict. International
humanitarian law is part of international law,
which is the body of rules governing relations
between States. International law is contained
in agreements between States treaties or
conventions , in customary rules, which
consist of State practise considered by them as
legally binding, and in general principles.
Human Rights law is those provided in
Article III, and is compound only by the
government to its citizens.
15.
M was a governor in one of the
provinces in Luzon. An anti-graft case was
filed against him in the Ombudsman in
connection with certain contracts he entered
into on behalf of the province. While the
Ombudsman was investigating, there came
the election and he ran for Congressman. He
was
elected
as
Congressman.
The
Ombudsman later filed the anti-graft case
against him before the SB. The SB, pursuant
to Section 13, RA 3019, as amended, issued
the suspension order against him addressed
to
the
Speaker
of
the
House
of
Representatives
for
enforcement.
M
questioned the regularity of the issuance of
such
suspension
order
against
him,
contending that first, the offense was alleged
to have been committed by him while he was
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election, returns
Congressman.
and
qualifications
of
the
e. VP of the Republic;
File an election protest within 30 days after
the proclamation of the winner to the PET,
where the SC decides such en banc. NO appeal
for the PET for it is the sole judge of all contests
relating to election, returns and qualifications of
the P and VP.
20.
Marc was elected VG in May 1992. In
March 1993, the duly elected Governor died,
and then Marc succeeded Governor. In the
May 1995 election, he ran for Governor and
won. In the May 1998 election ran again for
Governor and won. In the May 2001 election,
he again file his COC for governor but his
opponent questioned the candidacy before
the COMELEC contending that since he has
already served 3 consecutive terms as
governor, he is no longer entitled to run. The
COMELEC however, failed to resolve the
disqualification case and in the election, he
lost. Marc seasonably filed an election
protest and in January 2002, he won in the
election protest and was proclaimed and
assumed office as governor. In connection
with the May 2004 election, he consulted
you whether he can still run for governor
again.
a. Give your advice, citing reasons.
Conditions for three-term rule to apply:
Elected for 3 consecutive terms;
Fully served the 3 consecutive terms.
Considering that he has served the
Mayorship for only two terms, the 1995-1998
and 1998-2001.
And that there is an
involuntary act, where he did not serve as
Mayor, that is when he lost to the election
contest filed. Thus he can run for mayor in
2004.
b. Discuss the 2 policies enunciated in
the constitutional provisions (Sec. 8,
Art. X) prohibiting local elective
officials from serving for more than 3
consecutive terms in the same
elective office.
Prevent Political Dynasty = so that the place will
not be at the realm of a political power vested in
one family.
Enhancing freedom of choice = so that there can
be another candidate which the voters can vote
upon.
21.
What are the 2 kinds of preventive
suspension under CSL? When is a public
officer subjected to preventive suspension
entitled to payment of backwages?
There are two kinds of preventive
suspension of civil service employees who are
charged with offenses punishable by removal or
suspension:
(1)Preventive
suspension
pending
investigation is not a penalty. It is a measure
intended to enable the disciplining authority to
investigate charges against respondent by
preventing the latter from intimidating or in any
way influencing witnesses against him. If the
investigation is not finished and a decision is
not rendered within that period, the suspension
will be lifted and the respondent will
automatically
be
reinstated.
If
after
investigation respondent is found innocent of
the charges and is exonerated, he should be
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De Facto
Color of title to an office
which is imperfect.
There is actual possession
Valid only to third parties
who relies on such acts
Not to benefit from it, unless
assumption is in good faith
and if there is no de jure
officer that gets the salary.
Ripens to de jure if not
questioned in quo warranto
25.
Doctrine
of
Exhaustion
of
Administrative Remedies
Before a party is allowed to seek the
intervention of the court, it is a condition that
he should have availed of all the means of
administrative processes afforded him.
j.
Doctrine
of
Condonation
or
Forgiveness
The Court should never remove an elective
public officer for acts prior to his present term
or office. To do otherwise would be to deprive
the people of their right to elect their officers;
when the people have elected a man to office, it
must be assumed that they did this with the
knowledge of his life and character, and that
they disregard or forgave his fault or
misconduct. Applies only to administrative
cases and not to criminal Cases.
26.
Discuss the 2 kinds of involuntary
extra-judicial confession under Sec. 12. Art.
III?
Two kinds of involuntary or coerced
confessions treated in this constitutional
provision: (1) those which are the product of
third degree methods such as torture, force,
violence, threat, intimidation, which are dealt
with in paragraph 2 of Section 12, and;
(2) those which are given without the benefit of
Miranda warnings, which are the subject of
paragraph 1 of the same Section 12.
Extrajudicial confessions are presumed
voluntary, and, in the absence of conclusive
evidence showing the declarants consent in
executing the same has been vitiated, such
confession will be sustained.
Numerous decisions of this Court rule
that for an extrajudicial confession to be
admissible, it must be: 1) voluntary; 2) made
with the assistance of competent and
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