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CODES AND NOTES ON CONSTITUTIONAL LAW II noxious

NOTES AND CASES ON CONSTITUTIONAL LAW II purpose


I. THE INHERENT/ FUNDAMENTAL POWERS OF THE As to intangible full and fair protection and
STATE Compensation altruistic equivalent of public
1. Police Power feeling that the property improvements
2. Power of Eminent Domain the person expropriated for the taxes
3. Power of Taxation has paid
contributed
· They are inherent powers because they belong to the very essence to the
of government and without them no government can exist. general
welfare
Similarities, Distinctions, and Limitation
Limitations:
Similarities: (a) May not be exercised arbitrarily to the prejudice of the Bill
· They are inherent in the State and may be exercised by it without of Rights.
need of express constitutional grant. (b) Subject at all times to the limitations and requirements of the
· They are necessary and indispensable The State cannot continue or Constitution and may in proper cases be annulled by the
be effective unless it is able to courts, i.e. when there is a grave abuse of discretion.
exercise them.
· They are methods by which the State interferes with private rights. A. POLICE POWER
· They all presuppose an equivalent compensation for the private
rights interfered with. Police Power – is an inherent power of the State to promote the
· They are exercised primarily by the legislature. welfare of society by restraining and regulating the use of liberty and
property.

Differences:
Police Power Eminent Taxation
Domain Justification of existence:
As to regulates regulates Regulates
regulation/extent both liberty property property rights · Saluspopuliestsupremalex– the welfare of the people is the
of power and property rights only only supreme law;
As to who may only the government only the
exercise government and some government · Sic uteretuoutalienum non laedas– a person must use his
private ownproperty so as not to injure another
entities
As to the destroyed -wholesome -wholesome Scope:
property taken because it is -taken for a -taken for a (a) cannot be bargained away through the medium of a treaty or
noxious or public use or public use or contract (Stone v Mississippi)
intended for purpose purpose
(b) may use taxing power as its implement (TiovsVideogram 2. must not be unfair and oppressive
Regulatory Board) 3. must not be partial and discriminatory
(c) may use eminent domain as its implement (Assoc. of Small 4. must not prohibit, but may regulate, trade
Landowners vs Sec. of Agrarian Reform) 5. must not be unreasonable
(d) could be given retroactive effect and may reasonably impair 6. must be general in application and consistent with public
vested rights or contracts (police power prevails over contract) policy
(e) dynamic, not static, and must move with the moving society it is
supposed to regulate · In Ermita-Malate Hotel and Motel Operators Association, Inc.
v. Mayor of Manila, police power has been characterized as the
Who may exercise Police Power? most essential,insistent and least limitable of powers extending as it
(a) the Legislature (inherent) does “to all greatpublic needs.”
(b) President (by delegation)
(c) administrative boards (by delegation) “[T}he mere fact that some individuals in the community may be
(d) lawmaking bodies on all municipal levels, including barangay deprived of
(by delegation) their business or a particular mode of earning a living cannot prevent
(e) Municipal governments / LGU's (conferred by statute – general the exercise of police power. .. [P]ersons licensed to pursue
welfare clause of RA 7160) occupations which may in the public need and interest be affected by
the exercise of the police power embark in these occupations subject
· Not being a political subdivision but merely an executive authority to the disadvantages which may result from the exercise of that
it has no police power. (MMDA v. Bel-Air Village Assoc.) power. ”

Tests (Limitations): Government can take away a license and increase the cost of license
fees even to prohibitive levels, if public interest dictates so, without
(a) Lawful subject – interests of the public generally, as any constitutional violations.
distinguished from those of a particular class, require the exercise of
police power Licenses for regulating non-useful occupation are incidental to the
exercise of police power and the right to exact fees is may be implied
(b) Lawful means – the means employed are reasonably necessary from that power to regulate. In setting the fees, municipal
for the accomplishment of the purpose and not unduly oppressive corporations are given wider discretion in this class of licenses (than
upon individuals for licenses issued to regular business). Courts have generally upheld
these because of the desirability of imposing restraints on individuals
Additional limitations (when exercised by delegate) [Nachura who engage in these unusefulenterprises.
Reviewer]:
· express grant by law (e.g. RA 7160) · In Ynot v. IAC, the Court here ruled that the ban on transportation
· within territorial limits (for LGU's) of carabao under the assailed ordinance and their outright
· must not be contrary to law (City Government of Quezon City confiscation and disposal without court hearing is a violation of due
vsEricta) process hence it is an invalid exercise of police power.
· for municipal ordinances -
1. must not contravene the Constitution or any statute The court adopted the measures laid down in the Toribio case.
or society itself
Protection general welfare is a function of police power which both · cannot require the conversion of
restrains and is restrained by due process, which requires notice and the property taken to public use,
hearing. nor is there any need for the
payment of just compensation
Case emphasized the need to have a lawful method to follow due
processrequirement. · The Regional Trial Court (RTC) has the jurisdiction over a
complaint foreminent domain.
Reasons why ordinance is invalid are:
◦ No reasonable connection between means employed Requisites of Eminent Domain:
(absolute ban on movement of carabeef) and purpose sought 1. Necessity of exercise
to be achieved (conservation of carabao for general welfare) 2. Private property
◦ Unduly oppressive since petition not given due process or 3. Taking
opportunity to be heard in proper court 4. Public use
5. Just compensation
B. EMINENT DOMAIN
1. Necessity of Exercise
Eminent Domain – is the use of the government of its coercive · genuine necessity, and
authority, upon just compensation, to forcibly acquire the needed · must be of public character
property in order to devote the same to public use. Eminent domain ◦ When exercised by legislature – political question
is also known as expropriation, or condemnation. ◦ When exercised by a delegate – justiciable question
▪ determine the: (a) adequacy of compensation; (b)
Who may Exercise? necessity oftaking; and (c) public
1. The Congress (inherent) use character
2. President
3. various local legislative bodies 2. Private Property
4. certain public corporations (e.g. National Housing Authority) · General Rule: anything that can come under the dominion of man
5. Quasi-public corporations (e.g. PLDT) is subject to expropriation
· Exceptions: money and chose in action (personal right not reduced
Eminent Domain Distinguished from Destruction from Necessity into possession, i.e. the right to
Eminent Domain Destruction from Necessity bring an action to recover debt, money or thing)
· Private property already devoted to public use cannot be
· public right · private right vested in every expropriated by a delegate acting under a general grant of authority
· arises from the laws of society individual with which the right of (City of Manila vsChinese Community)
and is vested in the state or state or state necessity has nothing
grantee, acting under the right to do 3. Taking
and power of the state or benefit · comes under the right of
of the state necessity, of self-preservation Requisites (Republic vsCastellvi):
· arises under the laws of society (a) expropriator must enter a private property
(b) entry must be for more than a momentary period · In Heirs of Ardona v. Reyes, the Court held that the Constitution
(c) entry must be under the warrant of legal authority understand public use in a broad sense as meaning public welfare.
(d) entry is for public use That includes development of tourism.
(e) the owner is deprived of enjoying his property
5. Just Compensation
· if taking is under police power, it is not compensable
Just compensation – is fair and full equivalent payment for the loss
Taking Under Eminent Domain vs Taking in Police Power : sustained, which is the measure of the indemnity, not whatever gain
Police Power Eminent Domain would accrue to the expropriating agency. It is not market value per
se. (Epza v. Dulay)
· the prejudice suffered by the · the individual suffers more than
individual property owner is his aliquot part of the damages, · Where only part of the property is expropriated:
shared in common with the rest i.e. a special injury above that entitlement toconsequential damages, if any
of the community sustained by the rest of the + consequential benefits must be deducted from the total
community compensation provided consequential
benefits does not exceed consequential damages

· In Amigable v. Cuenca, where there is taking in the constitutional ◦ Payment of the correct amount + Payment within a
sense, the property owner need not file a claim for just compensation reasonable time
with the Commission of Audit; he may go directly to the court to
demand payment. Arbitrary action of the government shall be · Form of Compensation: Money (However, in Assoc. of
deemed a waiver of its immunity from suit. Small Landowners vs Sec. of Agrarian Reform, payment is
allowed to be madepartly in bonds because it deals with a
· In City Government v. Ericta, an ordinance of Quezon City, revolutionary kind of expropriation).
under theguise of exercising police power, prescribed that at least 6%
of the totalarea of memorial parks must be developed and set aside · Transfer of Title: payment of just compensation before
for the burial of paupers. The Court held that such ordinance is not title istransferred.
an exercise of police power but the taking of private property for
public use. Hence, to satisfy the Constitution, there must be · Reckoning point of market value of property: either as
compensation. of the date of taking or filing of the complaint, whichever
comes first
4. Public Use
· Entitlement of interest:
Public use – is whatever may be beneficially employed for the ◦ General Rule: when there is delay, there must be interest
general welfare, including both direct or indirect benefit or by way ofdamages (Art. 2209, CC)
advantage to the public ◦ Exception: when waived by not claiming the interest
· Payment of Taxes :taxes paid from the time of the taking until the · In the case Republic v. PLDT, the Court ordered the PLDT to
transfer of the title, during which the owner did not enjoy any allow the reconnection of telephone lines of the Republic.
beneficial use of the property, are reimbursable by the expropriator. ◦ No cogent reason appears why Eminent Domain may be
availed of toimpose only a burden upon the owner of
condemned property withoutloss of title or possession for
public use subject to just compensation
· Right of the landowner in case of non-payment: ◦ Case highlights that even services may be subjected to
◦ General Rule: landowner is not entitled to recover possession of eminentdomain
the property, but only to demand payment
◦ Exception: when the government failed to pay just compensation · In City of Manila v. Chinese Community of Manila, the Court
within 5 years from the finality of judgment in expropriation said that“[T]he very foundation of the right to exercise eminent
proceedings, there is a right to recover property domain is a genuinenecessity and that necessity must be of public
character.”
· In De Knecht v. Bautista, the court ruled that the expropriation
proceeding against the property of petitioner was arbitrary and · In Epza v. Dulay, P.D. Nos. 76, 464, 794, and 1533 prescribed a
cannot receive judicial approval. There was another area where the formula for arriving at just compensation in expropriation
expansion ofEDSA can be undertaken, which will cost government proceedings , dispensewith the need to appoint commissioners to
less, affect lesserhomeowners, etc. determine just compensation.The Court held that those decrees are
unconstitutional and void for theyconstitute “impermissible
· But in Republic vs. Knecht, the same property was ordered encroachment on judicial prerogatives.”
expropriated. Apparently, BP 340, which called for the taking of the
property, was enacted after the 1st De Knecht case. De Knecht · In Republic v. CA, the government argued that the nullification
argued that there was already a law of the case, which should not be shouldonly have prospective effect. The Court agreed. Thus under
disturbed. the“operative fact” doctrine, the effect of the invalidated law was
allowed toaffect transactions completed before the declaration of
Court responded that while it is true that there was a law of the case, nullity.
it is equally true that there is constitutional grant given to the State to
take private property upon payment of just compensation. “Such C. POWER OF TAXATION
expropriation proceedings may be undertaken by the [State] not only
by voluntary negotiation with landowners but also by taking Power of Taxation – is a method by which contributions are exacted
appropriate court action or by legislation.” frompersons and property for the support of government and for all
public needs.
The prior court decision is no obstacle for the legislature to make its
own assessment of the circumstances that prevailed after the decision · Obligation to pay taxes is a duty
as well as supervening events and reaching a conclusion as to the
propriety of undertaking the appropriation of the De Knecht Taxes vs Licenses
property. Tax License

· to raise revenues · for regulatory purpose only


· justified under police power notified of theassessment proceedings and to be heard therein on the
· amount of fees required is correct valuationof the property.
usually limited to the
cost of regulation 2. Equal Protection
· embodied in Sec. 28 (1), Art. VI, 1987 Constitution (The rule of
Scope taxation shall be uniform and equitable. The Congress shall evolve a
· all income earned in the taxing state, whether by citizens or aliens, progressivesystem of taxation.)
and allimmovable and tangible personal properties found in its
territory, as wellas tangible personal property owned by persons · Uniformity – persons or things belonging to the same class shall be
domiciled therein taxedat the same rate
◦ Requisites (Tan vs Del Rosario):
Power to Tax Includes Power to Destroy (a) standards that are used are substantial and not
(1) when used validly as an implement of the police power in arbitrary
discouragingand in effect ultimately prohibiting certain things or (b) categorization is germane to achieve the
enterprises inimical topublic welfare legislative purpose
(c) the law applies, all things being equal, to both
Power to Tax Does Not Include Power to Destroy present and futureconditions
· where the tax is used solely for the purpose of raising revenues (d) classification applies equally well to all those
belonging to the sameclass
Who May Exercise
1. Legislature / Congress (inherent) · Equitable taxation – based on the capacity to pay
2. President (by delegation / tariff powers [Sec. 28 (2), Art. VI,
Consti]) · Equality in taxation – tax shall be strictly proportional to the
3. local legislative bodies (conferred by direct authority [Sec. 5, Art. relative valueof the property
X,Consti])
· Progressive system of taxation – the rate increases as the tax
Limitations of Taxation: baseincreases
1. Due Process of Law
2. Equal Protection 3. Public Purpose
3. Public Purpose · whatever may be beneficially employed for the general welfare

1. Due Process · Double Taxation / Direct Duplicate Taxation


· Substantive :tax should not be confiscatory except when used as ◦ when additional taxes are laid on the same subject by the
animplement of police power same taxingjurisdiction during the same taxing period and
· Procedural :due process does not require previous notice and for the same purpose.
hearingbefore a law prescribing specific taxes on specific articles ◦ despite the lack of specific prohibition, double taxation will
may beenacted. However, where the tax to be collected is to be based not be allowed if it results in a violation of the equal
on thevalue of the taxable property, the taxpayer is entitled to be protection clause.
· Tax Exemptions may either be:
◦ constitutional A. DUE PROCESS
▪ Art. Vi, Sec. 28 (3) : when lands, buildings and
improvements are actually, directly and exclusively Section 1, Art. III. No person shall be deprived of life, liberty, or
for religious, charitable oreducational purposes – property without due process of law, nor shall any person be
entitled to exemption denied the equal protection of the laws.

◦ statutory- discretion of legislature · no precise definition because it might prove constricting and
prevent the judiciary from adjusting it to the circumstances of
II. CIVIL AND POLITICAL RIGHTS particular cases
· responsiveness to the supremacy of reason, obedience to the
Bill of Rights – set of prescriptions setting forth the fundamental dictates of justice
civil and political rights of the individual, and imposing limitations · embodiment of sporting idea on fair play
on the powers of the government as a means of securing the · guaranty against any arbitrariness on the part of the government
enjoyment of those rights.
Protection of Person
Significance of the Bill of Rights
Covers Natural (citizen and alien) and Artificial Persons. As to the
Government is powerful. When unlimited, it becomes tyrannical. latter, with respect only to property because its life and liberty are
The Bill of derived from and subject to control of legislature

Rights is a guarantee that there are certain areas of a person's life, Deprivation (in Sec. 1, Art. III)
liberty, and property which governmental power may not touch.
· connotes denial of right to life, liberty or property
· Bill of Rights are generally self-implementing. · not unconstitutional. what is prohibited is deprivation without due
process of law.
Classification of Rights · When the State acts to interfere with life, liberty, or property, the
presumption is that the action is valid.
1. Political Rights – granted by law to members of community in
relation to their direct or indirect participation in the establishment or 1. Life
administration of the government; · It is not just a protection of the right to be alive or to the security of
one's limb against physical harm. The right to life is the right to a
2. Civil Rights – rights which municipal law will enforce at the good life... a life of dignity and... a decent standard of living.
instance of private individuals for the purpose of securing them the 2. Liberty
enjoyment of their means of happiness; (1) freedom to do right and never wrong (Mabini)
(2) right to be free from arbitrary personal restraint or servitude
3. Social and Economic Rights; and, 3. Property
· anything that can come under the right of ownership and be the
4. Human Rights. subject of contract
· all things within the commerce of man (c) Hearing
· However, one cannot have a vested right to a public office as this is · not necessarily trial-type hearing; submission of position
not regarded as property. If created by statue, it may be abolished by papers is enough
the legislature at any time. · right of a party to cross-examine the witness against him in
· Mere privileges are not property rights and are therefore revocable a civil case is an indispensable part of due process
at will · the filing of a motion for reconsideration cures the defect of
absence of a hearing
Aspects of Due Process · Cases in which notice and hearing may be dispensed with
1. Substantive Due Process without violating due process:
2. Procedural Due Process ◦ abatement of nuisance per se
◦ preventive suspension of a civil servant facing
· As a substantive requirement, it is a prohibition of arbitrary laws. administrativecharges
· As a procedural requirement, it relates chiefly to the mode of ◦ cancellation of passport of a person sought for the
procedure which government agencies must follow in the commission of acrime
enforcement and application of laws. It is a guarantee of procedural ◦ statutory presumptions
fairness. (d) Judgment rendered upon lawful hearing (BancoEspanol Filipino
v. Palanca)

2. Administrative Due Process


Substantive Due Process
Requisites:
Substantive due process – requires intrinsic validity of the law in (a) Right to a hearing
interfering with the rights of the person to his life, liberty or property (b) Tribunal must consider the evidence presented
(c) Decision must have something to support itself
Requisites: (d) Evidence must be Substantial
(a) Lawful Subject (e) Decision must be rendered on the evidence presented at the
(b) Lawful Means hearing, or at least contained in the record and disclosed to the
parties affected
Procedural Due Process (f) Tribunal, body, or any of its judges must act on its or his own
independent consideration of the facts and law of the controversy
Procedural due process – is the restriction on actions of judicial and (g) Decision is rendered in such a manner that the parties to the
quasi-judicialagencies of government. proceeding can know the various issues involved, and the reason for
the decision rendered
1. Judicial Due Process
· In administrative proceedings, the quantum of proof required is
Requisites: only substantial evidence, such relevant evidence as a reasonable
(a) Impartial and Competent Court mind might accept as adequate to support a conclusion.
(b) Jurisdiction lawfully acquired over the person of the defendant
and/or property
· The law is vague when it lacks comprehensible standards that men employee by determining the hours of labor in the occupation of a
“of common intelligence must necessarily guess as to its meaning baker without reasonable ground for doing so.
and differ as to its application. It is repugnant to the Constitution in
two respects: The general right to make a contract in relation to one’s business is a
▪ it violates due process for failure to accord persons fair liberty protected by the 14thamendment.
notice ofconduct to avoid; and,
▪ it leaves law enforcers unbridled discretion in carrying out The state may interfere with and regulate both property and liberty
itsprovisions and becomes arbitrary flexing of the rights to prevent the individual from making certain kinds of
Governmentmuscle. contracts in its exercise of police power which relates to safety,
health, morals and general welfare of the society. In this instance, the
· In Estrada vs. Sandiganbayan, it was held that there was no 14th amendment cannot interfere.
violation of due process because the nature of the charges against the
petitioner is not uncertain and void merely because general terms are The trade of a baker is not an alarmingly unhealthy one that would
used or because it employed terms that were not defined. The Anti- warrant the state’s interference with rights to labor and contract.
Plunder law does not violate due process since it defines the act
which it purports to punish,giving the accused fair warning of the Doctrine: The rule must have a more direct relation, as means to an
charges against him, and can effectively interpose a defense against end, and the end itself must be appropriate and legitimate, before an
on his behalf. act can be held to be valid which interferes with the general right of
an individual to be free in his person and in his power to contract in
· A Connecticut statute making it a crime to use any drug or article relation to his own labor.
to prevent conception violates the right of marital privacy which is
within the penumbra of specific guarantees of the Bill of Rights. · Our cases include Court of Industrial Relations (AngTibay vs.
◦ Although the Bill of Rights does not mention ‘privacy’ the CIR) as an administrative court which exercises judicial and quasi-
Court ruled that that the right was to be found in the judicial functions in the determination of disputes between
"penumbras" of otherconstitutional protections. “The First employers and employees. National Telecommunications Company
Amendment has a penumbra where privacy is penumbra (PHILCOMSAT vs. Alcuaz), National Labor Relations Commission
where privacy is protected from governmental intrusion.” or NLRC (DBP vs. NLRC) and school tribunals (Ateneo vs. CA-
Board of Discipline, Alcuaz vs. PSBA, Non vs. Judge Dames,
· In Lochner v. New York, Lochner was charged with violation of Tinker vs. Des Moines Community School District) also are clothed
the labor laws of New York for wrongfully and unlawfully with quasi-judicial function. It is a question of whether the body or
permitting an employee to work more than 60 hours in one week. institution has a judicial or quasi-judicial function that makes it
The statute allegedly violated mandates that no employee shall bound by the due process clause. (Judicial function is synonymous to
contract or agree to work more than 10 hours per day. judicial power which is the authority to settle justiciable
Issue: Whether the statute is unconstitutional. controversies or disputes involving rights that are legally enforceable
Ruling: Yes. and demandable or the redress of wrongs for violations of such
rights. It is a determination of what the law is and what the legal
The statute is unconstitutional. The statute interferes with the liberty rights of the parties are with respect to a matter in controversy).
of a person and the right of free contract between employer and
· In AngTibay vs. CIR, the Court laid down cardinal requirements Substantive Equality – all persons or things similarly situated
in administrative proceedings which essentially exercise a judicial or should be treated alike, both as to rights conferred and
quasijudicialfunction. These are: responsibilities imposed.
(1) the right to a hearing, which includes the right to present one’s
case and submit evidence in support thereof Equality in enforcement of the law – law be enforced and applied
(2) The tribunal must consider the evidence presented equally
(3) The decision must have something to support itself
(4) The evidence must be substantial. Substantial evidence means Requisites of Valid Classification:
such a reasonable evidence as a reasonable mind might accept as (a) it must be based on substantial distinctions
adequate to support a conclusion (b) it must be germane to the purposes of the law
(5) The decision must be based on the evidence presented at the (c) it must not be limited to existing conditions only
hearting or at least contained in the record and disclosed to the ◦ must be enforced as long as the problem sought to be
parties affected corrected exists
(6) The tribunal or body of any of its judges must act on its own (d) it must apply equally well to all members of the class
independent consideration of the law and facts of the controversy ◦ both as to rights conferred and obligations imposed
and not simply accept the views of a subordinate
(7) The Board or body should, in all controversial questions, render · In De Guzman v. Comelec, petitioners theorize that Sec. 44 of RA
its decision in such manner that the parties to the proceeding can 8189 is violative of the equal protection clause because it singles out
know the various issues involved and the reason for the decision the City and Municipal Election Officers of the COMELEC as
rendered. prohibited from holding office in the same city or municipality for
more than four years. The Court held that the law is valid. The
B. EQUAL PROTECTION singling out of election officers in order to “ensure the impartiality of
Section 1, Art. III. No person shall be deprived of life, election officials by preventing them from developing familiarity
liberty, or property without due process of law, nor shall with the people of their place of assignment.
any person be denied the equal protection of the laws.
· In Ormoc Sugar Central v. Ormoc City, Ormoc City imposes a
· The Equality Protection Clause is a specific constitutional tax onOrmoc Sugar Central by name. OrmosSugar Central is the
guarantee of the Equality of the Person. The equality it guarantees is only sugar central in Ormoc City. The Court held that such ordinance
“legal equality or, as it is usually put, the equality of all persons is not valid for it would be discriminatoory against the Ormoc Sugar
before the law. Central which alone comes under the ordinance.
· embraced in the concept of due process
· embodied in a separate clause to provide for a more specific C. SEARCH AND SEIZURE
guaranty against undue favoritism or hostility from the government Section 2, Art. III. The right of the people to be secure in
their persons,houses, papers, and effects against
Due Process Clause attacks arbitrariness in general unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search
Equal Protection Clause attacks unwarranted partiality or warrant or warrant of arrest shall issue except upon
prejudice probable cause to be determined personally by the judge
after examination under oath or affirmation of the
complainant and the witnesses he may produce, and Exception: orders of arrest may be issues by administrative
particularly describing the place to be searched and the authorities but only for the purpose of carrying out a final finding of
persons or things to be seized. a violation of a law

Section 2, Art. III – deals with tangibles; embodies the “castle” Valid Warrantless Searches
doctrine (a man's house is his castle; a citizen enjoys the right
against official intrusion and is master of all the surveys within the [NOTE: each of these requires probable cause, except stop and frisk]
domain and privacy of his own home.)
1. searches incidental to lawful arrest (rule 126, Rules of Court) –
· This provision applies as a restraint directed only against the for dangerous weapons or anything that may have been used or
government and its agencies tasked with enforcement of the law. It constitute in the commission of an offense
does not protect citizens from unreasonable searches and seizures
perpetrated by private individuals. Requisites:
1. the item to be searched was within the arrestee's custody
Section 3, Art. III. (1)The privacy of communication and or area of immediate control
correspondence shall be inviolable except upon lawful order of 2. the search was contemporaneous with the arrest
the court, or when public safety or order requires otherwise, as
prescribed by law. (2) Any evidence obtained in violation of this 2. searches of moving vehicles
or the preceding section shall be inadmissible for any purpose in
any proceeding. · In Aniag v. Comelec, twenty meters away from the gate of the
Batasan, a truck was stopped and searched. The motorists had not
Section 3 (1), Art. III – deals with intangibles given any evidence of suspicious behaviour nor had the searching
officers received any confidential information about the car. The
Section 3 (2), Art. III – Exclusionary Rule (which embodies the Court held that the search was not justifiable as a warrantless arrest
Doctrine of the Fruit of the Poisonous Tree) of a moving vehicle as there was no probable cause.

Exclusionary Rule – evidence obtained in violation of Sec. 2, 3. searches of prohibited articles in plain view
Art.III, shall be inadmissible for any purpose in any proceeding
(Fruit of Poisonous Tree Doctrine). (Stonehill v. Diokno) Requisites:
1. prior valid intrusion to a place
· available to natural and artificial persons, but the latter's books of 2. evidence was inadvertently discovered by the police who
accounts may be required to open for examination by the State in the has the right to be there
exercise of police power or power of taxation The right is personal 3. evidence is immediately apparent
(StonehillvsDiokno) 4. there is no further search

· General Rule: only a judge may issue a warrant. 4. enforcement of customs law

5. consented searches
6. stop and frisk (limited protective search of outer clothing for committed and the offense has been
weapons) person sought to committed
bearrested had and the objects
· In Terry v. Ohio, the stop-and-frisk rule is stated thus: “(W)here a committed it sought in the
police officer observes unusual conduct which leads him reasonably connection of the
to conclude in the light of his experience that criminal activity may offense are in
be afoot and that the person with whom he is dealing may be armed the place sought to
and presently dangerous, where in the course of investigation of this be searched
behavior he identifies himself as a policeman and makes reasonable 2. Personal The judge personally The judge must
inquiries, and where nothing in the initial stages of the encounter determination of determines the existence personally
serves to dispel his reasonable fear for his own or others' safety, he is probable cause by ofprobable cause; it is examinein the
entitled for the protection of himself and others in the area to conduct the judge notnecessary that he form of searching
a carefully limited search of the outer clothing of such persons in an should questions and
attempt to discover weapons which might be used to assault him.” personally examine the answers...
complainant and his in writing and
· Stop-and-frisk rule serves a two-fold interest: witnesses under oath...
(1) the general interest of effective crime prevention and detection; (SolivenvsMakasiar) the complainants
(2) the more pressing interest of safety and self-preservation. and his
(Malacat) Procedure: witnesses...
(1) personally evaluate on facts personally
7. routine searches at borders and ports of entry the fiscal's report, or known to
(2) if [1] is insufficient, them...
8. searches of businesses in the exercise of visitorial powers disregard it and require and attach to the
toenforce police regulations the submission of record their
supporting affidavits of sworn statements
Valid Warrantless Arrest witnesses and affidavits.
1. in flagrante delicto Preliminary inquiry (Silva vs Presiding
2. hot pursuit (task of Judge)
3. the offender escaped from the penal establishment the judge) – released
determination of
Requisites of a valid warrant probable cause for the
Arrest Warrant Search Warrant issuance of warrant of
arrest
1. Probable Cause Such facts and Such facts and Preliminary
must refer to one circumstances which circumstances investigation proper
(1) specific offense would lead a reasonably which would lead (task of theprosecutor) –
prudent man to believe a reasonably ascertainmentwhether
that an prudent man to the offender shouldbe
offense has been believe that an held for trial or be
· In Corro v. Lising, the Affidavit of Col. Castillo stated that in
3. After Not merely routinary but Not merely several issues of the Philippine Times:”... we found that the said
examination under must routinary but must publication in fact foments distrust and hatred against the
oath or be probing and be probing and government of the Philippines. The Court held that the affidavit does
affirmation of the exhaustive exhaustive not establish probable cause, and is nothing but conclusions of law.
complainant and
the witnesses he · In Burgos v. Chief of Staff, a search warrant for the newspaper
may produce WE Forum is issued on the basis of a broad statement of the military
4.Particularity of General Rule: it must General Rule: that Burgos, Jr. is “in possession of printing equipment and other
description contain the name/s of when the paraphernalia... used as means of committing the offense of
thepersons to be description therein subversion.” The Court held that such allegation is not sufficient to
arrested is as specific establish probable cause. It is a mere conclusion of law unsupported
Exception: if there is as the by particulars.
some descriptio circumstances will
personae which will ordinarily allow. The Court also held that the search warrant description has the
enable the officer to Exception: when “sweeping tenor” making the document a general warrant. The
identify the accused no other more search warrant particularly states:”all printing equipment,
accurate and typewriters... of the WE Forum newspaper and any other
detailed documents...” It is not required that the property to be searched
description could should be owned by the person against whom the search warrant is
have been directed. It is sufficient that the property is under the control or
given. possession of the person sought to be searched.

· In Soliven v. Judge Makasiar, the Court clarified the meaning of


· In Valmonte v. Gen. De Villa, the Court held that not all searches “personally” in the search and seizure clause. It stated that in arriving
and seizures are prohibited. Those which are reasonable are not at a conclusion as to the existence of existence of probable cause,
forbidden. A reasonable search is not to be determined by any fixed what is required is personal determination and not personal
formula but is to be resolved according to the facts of the case. examination.
Checkpoints are not illegal per se... Routine inspection and few
questions do not constitute unreasonable searches. If the inspection · In Lim v. Felix, the Court held that the judge in issuing a warrant
becomes more thorough to the extent of becoming a search, this can of arrest cannot rely solely on the certification or recommendation of
be done when there is deemed to be probable cause. In the latter a prosecutor that probable cause exists. The judge must look at the
situation, it is justifiable as a warrantless search of a moving vehicle. report, the affidavits, the transcripts of stenographic notes (if any),
and all other supporting documents behind the Prosecutor's
Probable Cause – facts and circumstances antecedent to the certification.
issuance of a warrant that are in themselves sufficient to induce a
cautious man to rely upon them. · In Stonehill v. Diokno, the Court held that the following
description is insufficient for it amounts to a general warrant
authorizing the officer to pick up anything he pleases: “ Bookof
accounts, financial records, vouchers...and other documents showing In Miranda v Arizona, the US Supreme Court established rules to
all business transactions....” The Court further held that the objection protect a criminal defendant's privilege against self-
to an unlawful search or seizure and to evidence obtained thereby is incrimination from the pressures arising during custodial
purely personal and cannot be availed by third parties. investigation by the police. Thus, to providepractical safeguards for
the practical reinforcement for the right againstcompulsory self-
D. MIRANDA RIGHTS incrimination, the Court held that “the prosecution may not
Section 12, Art. III. usestatements, whether exculpatory or inculpatory, stemming from
1. Any person under investigation for the commission of custodialinterrogation of the defendant unless it demonstrates the use
an offense shall have the right to be informed of his right of proceduralsafeguards effective to secure the privilege against self-
to remain silent and to have competent and independent incrimination.
counsel preferably of his own choice. If the person cannot
afford the services of counsel, he must be provided with Requisites of the Miranda Doctrine
one. These rights cannot be waived except in writing and (1) any person under custodial investigation has the right to remain
in the presence of silent;
counsel. (2) anything he says can and will be used against him in a court of
2. No torture, force, violence, threat, intimidation, or any law;
other means which vitiate the free will shall be used (3) he has the right to talk to an attorney before being questioned and
against him. Secret detention places, solitary, to have his counsel present when being questioned; and
incommunicado, or other similar forms of detention are (4) if he cannot afford an attorney, one will be provided before any
prohibited. questioning if he so desires.
3. Any confession or admission obtained in violation of
this or Section 17 hereof shall be inadmissible in evidence Custodial investigation defined
against him. · Any questioning initiated by law enforcement officers after a
4. The law shall provide for penal and civil sanctions for person has been taken into custody or otherwise deprived of his
violations of this Section as well as compensation to the freedom of action in any significant way.
rehabilitation of victims of torture or similar practices, · Begins as soon as the investigation is no longer a general inquiry
and their families. unto an unsolved crime, and direction is then aimed upon a particular
suspect who has been taken into custody and to whom the police
· called the “Miranda Doctrine” (Miranda vs Arizona) would then direct interrogatory questions which tend to elicit
incriminating statements.
Miranda Doctrine – prior to any questioning during custodial · Shall include the practice of issuing an invitation to a person who is
investigation, the person must be warned that he has a right to remain investigated in connection with an offense he is suspected to have
silent, that any statement he gives may be used as evidence against committed, without prejudice to the liability of the inviting officer
him, and that he has the right to the presence of an attorney, either for any violation of law.
retained or appointed. The defendant may waive effectuation of these
rights, provided the waiver is made voluntarily, knowingly, and Extrajudicial confession is Admissible when:
intelligently. (a) Voluntary
(b)With assistance of counsel
Purpose of the Doctrine (c) In writing, and
(d) Express · Res Gestae: The declaration of the accused acknowledging guilt
made to the police desk officer after the crime was committed may
Rights Under Custodial Investigation be given in evidence against him by the police officer to whom the
admission was made, as part of the res gestae.
(a) To be informed of right to remain silent and to counsel
· Carries the correlative obligation on the part of the · In People v. Galit, rights under custodial investigation may be
investigator to explain and contemplates effective waived. The Constitution says; “These rights cannot be waived
communication whichresults in the subject understanding except in writing and in the presence of counsel.” In localities where
what is conveyed. (Peoplev. Agustin) there are no lawyers, the State must bring the individual to a place
where there is one.
(b) To be reminded that if he waives his right to remain silent,
anything he says can and will be used against him · Termination of rights under custodial investigation: When
(c) To remain silent Charges are filed against the accused (in such case, Sections 14 and
(d) To have competent and independent counsel preferably of own 17 come into play).
choice
(e) To be provided with counsel if the person cannot afford the · In Gutang v. People, the Court held that urine sample is
services of one admissible. “What the Constitution prohibits is the use of physical or
(f) No torture, force, violence, threat, intimidation or any other moral compulsion to extort communication from the accused, but not
means which vitiate the free will shall be used against him an inclusion of his body in evidence, when it may be material. In
(g) Secret detention places, solitary, incommunicado, or other similar fact, an accused may be validly compelled to be photographed or
forms of detention are prohibited measured, or his garments or shoes removed or replaced, or to move
(h) Confessions or admissions obtained in violation of these rights his body to enablke the foregoing thingsto be done, without running
are inadmissible as evidence (exclusionary rule) afould of the proscription against testimonialcompulsion.

Rights That May Be Waived


[waiver must be in writing and in the presence of counsel] E. RIGHT TO BAIL
(a) Right to remain silent
(b) Right to Counsel Section 13, Art. III. All persons, except those charged
with offenses punishable by reclusion perpetua when
Rights That Cannot Be Waived evidence of guilt is strong, shall, before conviction, be
(a) Right to be informed of his right to remain silent and to counsel bailable by sufficient sureties, or be released on
(b) Right to counsel when making the waiver of the right to remain recognizance as may be provided by law. The right to
silent or to counsel bail shall not be impaired even when the privilege of the
· Right to counsel de parte is not unlimited. Accused cannot writ of habeas corpus is suspended. Excessive bail shall
repeatedly ask for postponement. He must be provided with not be required.
counsel de oficio.
· RA 7309: victims of unjust imprisonment may file their Bail – is security given for the release of a person in custody of law,
claims with theBoard of Claims under DOJ furnished by him or a bondsman, to guaranty his appearance before
any court as may be required
(f) Strength of the evidence
Kinds of Bail (g) Probability of appearing at the trial
(a) Cash bond (h) Forfeiture of previous bail bonds
(b) Security bond (i) Whether accused was a fugitive from justice when arrested
(j) If accused is under bond in other cases
Who May Invoke?
A person under detention even if no formal charges have yet been Implicit Limitations on the Right to Bail
filed (Rule 114, Rules of Court)
(a) The person claiming the right must be in actual detention or
Who Are Entitled? custody of the law.
(a) Persons charged with offenses punishable by Reclusion Perpetua
or Death, when evidence of guilt is strong · In People v. Donato, charged with rebellion, a bailable offense,
(b) Persons convicted by the trial court. Bail is only discretionary Salas nevertheless agreed “to remain in legal custody during the
pending appeal. pendency of the trial of his criminal case.” The Court held that he
(c) Persons who are members of the AFP facing a court martial. does not have the right to bail, because bu his act he has waived his
right.
· In Paderanga v. CA, all persons actually detained, except those
charged with offenses punishable by reclusion perpetua or death (b) The constitutional right is available only in criminal cases, not,
when evidence of guilt is strong, shall, before conviction, be bailable e.g. in deportation and extradition proceedings.
but sufficient sureties. One is under the custody of the law either
when he has been arrested or has surrendered himself to the Note:
jurisdiction of the court, as in the case where through counsel (a) Right to bail is not available in the military.
petitioner for bail who was confined in a hospital communicated his
submission to the jurisdiction of the court. · In Comendador v. De Villa, soldier under court martial does not
enjoy the right to bail. It is because of the disciplinary structure of
the military and because soldiers are allowed the fiduciary right to
bear arms and can therefore cause great havoc... Nor can appeal be
made to the equal protection clause ebcause equal protection applies
Other Rights in Relation to Bail only to those who are equally situated.
· The right to bail shall NOT be impaired even when the privilege of
the writ of habeas corpus is suspended. (b) Apart from bail, a person may attain provisional liberty through
· Excessive bail shall not be required. recognizance.

Factors in Fixing Amount of Bail · In US v. Puruganan, the Court held that extradition is not a
(a) Ability to post bail criminal proceeding. Hence, since bail is available only in criminal
(b) Nature of the offense proceedings, a respondent in an extradition proceeding is not entitled
(c) Penalty imposed by law to a bail. He should apply for a bail in the court where he will be
(d) Character and reputation of the accused tried.
(e) Health of the accused
F. RIGHTS OF THE ACCUSED 1. Impartial and competent court in accordance with procedure
Section 14, Art. III. prescribed by law;
1. No person shall be held to answer for a criminal 2. Proper observance of all the rights accorded the accused under the
offense without due process of law. Constitution and the applicable statutes (example of statutory right of
2. In all criminal prosecutions, the accused shall be the accused: right to Preliminary investigation)
presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel, to be · Mistrial may be declared if shown that proceedings were held
informed of the nature and cause of the accusation under circumstances as would prevent the accused from freely
against him, to have a speedy, impartial, and public trial, making hisdefense or the judge from freely arriving at his decision.
to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witnesses · There is violation of due process when law not published and a
and the production of evidence in his behalf. However, person is impleaded for violation of such law.
after arraignment, trial may proceed notwithstanding the
absence of the accused: Provided, that he has been duly · There is violation of due process when appeal is permitted by law
notified and his failure to appear is unjustifiable. but there is denial thereof.

The Rights of the Accused Include 2. Presumption of Innocence


1. Criminal due process;
2. Presumption of innocence; · Burden of proof to establish the guilt of the accused is with the
3. Right to be heard by himself or counsel; prosecution.
4. Right to be informed of the nature and cause of the accusation
against him; · Conviction depends on the strength of prosecution, not on the
5. Right to speedy, impartial and public trial; weakness of the defense
6. Right to meet the witnesses face to face;
7. Right to compulsory process to secure attendance of witnesses and · The presumption may be overcome by contrary presumption based
production of evidence; and on the experience of human conduct. (e.g unexplained flight may
8. trial in absentia lead to an inference of guilt, as “the wicked flee when no man
pursueth, but the righteous are as bold as a lion.”)
1. Criminal Due Process
· The constitutional presumption will not apply as long as there is
Criminal process includes some rational connection between the fact proved and the ultimate
fact presumed, and the inference of one fact from proof of another
a) Investigation prior to the filing of charges shall not be so unreasonable as to be a purely arbitrary mandate. –
b) Preliminary examination and investigation after charges are filed Cooley
c) Period of trial
· No inference of guilt may be drawn against an accused for his
Requirements of Criminal Due Process failure to make a statement of any sort.
· In Dumlao v. Comelec, for the purposes of disqualification in an Purpose for the Right to be informed of the Nature and Cause of
election, section 4 of BP Blg. 52 says that” the filing of charges for Accusation
the commission of such crimes before civil court or military tribunal
after preliminary investigation shall be prima facie evidence of such (1) To furnish the accused with a description of the charge against
fact (disqualification).” The Court held that this provision violates him as will enable him to make his defenses;
the guarantee of presumption of innocence. Although filing of (2) To avail himself of his conviction or acquittal against a further
charges is only prima facie evidence and may be rebutted, the prosecution for the same cause;
proximity of elections and consequent risk of not having time to (3) To inform the court of the facts alleged.
rebut the prima facie evidence already in effect make him suffer as
though guilty even before trial. · The description and not the designation of the offense is controlling
(The real nature of the crime charged is determined from the recital
Equipoise Rule – evidence of both sides are equally balanced, in of facts in the information. It is not determined based on the caption
which case the constitutional presumption of innocence should tilt or preamble thereof nor from the specification of the provision of
the scales in favor of theaccused. law allegedly violated.)
3. Right to be Heard by Himself and Counsel
· If the information fails to allege the material elements of the
· Indispensable in any criminal prosecution where the stakes are the offense, the accused cannot be convicted thereof even if the
liberty or even the life of the accused prosecution is able to present evidence during the trial with respect to
such elements.
· Assistance of counsel begins from the time a person is taken into
custody and placed under investigation for the commission of a Void for Vagueness Rule – accused is denied the right to be
crime. informed of the charge against him and to due process as well, where
▪ This is not subject to waiver. the statute itself is couched in such indefinite language that it is not
possible for men of ordinary intelligence to determine therefrom
· Right to counsel means the right to effective representation. what acts or omissions are punished and
hence, shall be avoided.
· If the accused appears at arraignment without counsel, the judge
must: · In Estrada vsSandiganbayan, the Court held that the Void for
(a) Inform the accused that he has a right to a counsel Vagueness Doctrine merely requires a reasonable degree of
beforearraignment; certaintyand not absolute precision or mathematical exactitude.
(b) Ask the accused if he desires the aid of counsel;
(c) If the accused desires counsel, but cannot afford one, a 5. The Trial
counsel deoficio must be appointed;
(d) If the accused desires to obtain his own counsel, the court Factors in Determining Whether There Is Violation
must give him a reasonable time to get one. (a) Time expired from the filing of the information
(b) Length of delay involved
4. Nature and Cause of Accusation (c) Reasons for the delay
(d) Assertion or non-assertion of the right by the accused
(e) Prejudice caused to the defendant.
to a name by which he is known, the witness is to be
· Effect of dismissal based on violation of this right: it amounts to understood as referring to him.
an acquittal and can be used as basis to claim double jeopardy. This
would be the effect even if the dismissal was made with the consent · Trial in Absentia is mandatory upon the court whenever the
of the accused accused has been arraigned.

Remedy if the Right is Violated · There is also Promulgation in Absentia

(1) He can move for the dismissal of the case; · While the accused is entitled to be present during promulgation of
(2) If he is detained, he can file a petition for the issuance of writ of judgment, the absence of his counsel during such promulgation does
habeas corpus. not affect its validity

Speedy trial - · The trial in absentia does not abrogate the provisions of the Rules
1. Free from vexatious, capricious and oppressive delays of Court regarding forfeiture of bail bond if the accused fails to
2. To relieve the accused from needless anxieties before sentence is appear at his trial.
pronounced upon him
· A court has the power to prohibit a person admitted to bail from
Impartial trial – the accused is entitled to the “cold neutrality of an leaving the Philippines as this is a necessary consequence of the
impartial judge”. It is an element of due process. nature and function of a bail bond

· Public trial: The attendance at the trial is open to all irrespective of 6. The Right to Meet the Witnesses Face to Face
their relationship to the accused. However, if the evidence to be
adduced is “offensive to decency or public morals”, the public may Purposes of the Right to Meet the Witnesses Face to Face
be excluded.
(1) To afford the accused an opportunity to cross-examine the
· The right of the accused to a public trial is not violated if the witness
hearings are conducted on Saturdays, either with the consent of the (2) To allow the judge the opportunity to observe the deportment of
accused or if failed to object thereto. the witness

· The right to be present covers the period from arraignment to Principal Exceptions to this Right
promulgation of sentence. (1) The admissibility of “dying declarations”
(2) Trial in absentia under Section 14(2)
· General Rule: the accused may waive the right to be present at the · With respect to child testimony
trial by not showing up. However, the court can still compel the
attendance of the accused if necessary for identification purposes. · Testimony of witness who was not cross-examined is not
admissible as evidence for being hearsay.
▪ Exception: If the accused, after arraignment, has stipulated
that he is indeed the person charged with the offense and · If a prosecution witness dies before his cross-examination can be
named in theinformation, and that any time a witness refers completed, his direct testimony cannot be stricken off the record,
provided the material points of his direct testimony had been covered Privilege of the Writ of Habeas Corpus – the right to have an
on cross. immediate determination of the legality of the deprivation of
physical liberty.
· The right to confrontation may be waived.
The President may suspend the privilege:
7. Compulsory Process
(1) in cases of invasion or rebellion
· The accused is entitled to the issuance of subpoena ad (2) when public safety requires it.
testificandumand subpoena ducestecumfor the purpose of compelling
the attendance of witness and the production of evidence that he may · Habeas corpus lies only where the restraint of a person's liberty has
need for his defense. been judicially adjudged to be illegal or unlawful (In re: Sumulong)
· Failure to obey – punishable as contempt of court.
· There are exceptional circumstances when the defendant may ask · The writ is a prerogative writ employed to test the validity of
for conditional examination, provided the expected testimony is detention
material of any witness under circumstances that would make him
unavailable from attending the trial. · To secure the detainee’s release

8. Trial in Absentia · The action shall take precedence in the calendar of the court and
must be acted upon immediately
Trial in Absentia May Only Be Allowed If the Following
Requisites Are Met: When available (enumeration not exclusive)

(1) the accused has been validly arraigned; restoration of liberty of an individual subjected to physical
(2) Accused has already been arraigned; restraint
(3) Accused has been duly notified of the trial; and
(4) His failure to appear is unjustifiable. may be availed of where, as a consequence of a judicial
proceeding:
1. there has been deprivation of a constitutional right
G. HABEAS CORPUS resulting in therestraint of the person
Section 15, Art. III. The privilege of the writ of habeas 2. the court has no jurisdiction to impose the sentence, or
corpus shall not be suspended except in cases of invasion 3. an excessive penalty has been imposed, since such
or rebellion, when the public safety requires it. sentence isvoid as to the excess.

Writ of Habeas Corpus – is a written order issued by a court, May be extended to cases by which rightful custody of any person
directed to a person detaining another, commanding him to produce is withheld from the person entitled thereto
the body of the prisoner at a designated time and place with the day
and cause of his caption and detention. Whenmoral restraint is exerted (Cauncavs Salazar)
Right was accorded a person was sentenced to a longer penalty suspension for a period to be determined by the Congress, if the
than was subsequently meted out to another person convicted of the invasion or rebellion shall persist and public safety requires it.
same offense. (Gumabonvs Director of Prisons)
The Congress, if not in session, shall, within twenty-four hours
Unlawful denial of bail following such proclamation or suspension, convene in
accordance with its rules without need of a call.
When not available (enumeration not exclusive)
The Supreme Court may review, in an appropriate proceeding
the person alleged to be restrained is in the custody of an officer filed by any citizen, the sufficiency of the factual basis of the
under a process issued by the court which has jurisdiction to do so proclamation of martiallaw or the suspension of the privilege of
desaparecidos (disappeared persons) – persons could not be found; the writ or the extension thereof, and must promulgate its
remedy is to refer the matter to Commission on Human Rights decision thereon within thirty days from its filing.

Procedure A state of martial law does not suspend the operation of the
Need to comply with writ; disobedience thereof constitutes contempt Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of
Who may suspend the privilege jurisdiction on military courts and agencies over civilians where
The President civil courts are able to function, nor automatically suspend the
privilege of the writ.
Grounds for Suspension of the privilege
1. invasion or rebellion The suspension of the privilege of the writ shall apply only to
2. when public safety requires it persons judicially charged for rebellion or offenses inherent in or
directly connected with invasion.
Section 18, Art. VII. The President shall be the Commander-in-
Chief of all armed forces of the Philippines and whenever it During the suspension of the privilege of the writ, any person
becomes necessary, he may call out such armed forces to prevent thus arrested or detained shall be judicially charged within three
or suppress lawless violence, invasion or rebellion. In case of days, otherwise he shall be released.
invasion or rebellion, when the public safety requires it, he may,
for a period not exceeding sixty days, suspend the privilege of the Lansang doctrine (Lansangvs Garcia): SC has the power to
writ of habeas corpus or place the Philippines or any part inquire into the factual basis of the suspension of the privilege of the
thereof under martial law. Within forty-eight hours from the writ. It is written in Article VII, Sec. 18 of the Constitution.
proclamation of martial law or the suspension of the privilege of
the writ of habeas corpus, the President shall submit a report in
person or in writing to the Congress. The Congress, voting H. WRIT OF AMPARO
jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or A.M. No. 07-9-12-SC
suspension, which revocation shall not be set aside by the (25 September 2007)
President. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or THE RULE ON THE WRIT OF AMPARO
When issued by the Sandiganbayan or the Court of Appeals or any of
SECTION 1.Petition.The petition for a writ of amparo is a remedy their justices, it may be returnable before such court or any justice
available to any person whose right to life, liberty and security is thereof, or to any Regional Trial Court of the place where the threat,
violated or threatened with violation by an unlawful act or omission act or omission was committed or any of its elements occurred.
of a public official or employee, or of a private individual or entity.
When issued by the Supreme Court or any of its justices, it may be
The writ shall cover extralegal killings and enforced disappearances returnable before such Court or any justice thereof, or before the
or threats thereof. Sandiganbayan or the Court of Appeals or any of their justices, or to
any Regional Trial Court of the place where the threat, act or
SEC. 2.Who May File. The petition may be filed by the aggrieved omission was committed or any of its elements occurred.
party or by any qualified person or entity in the following order:

1. Any member of the immediate family, namely: the spouse,


children and parents of the aggrieved party; SEC. 4.No Docket Fees. The petitioner shall be exempted from the
payment of the docket and other lawful fees when filing the petition.
2. Any ascendant, descendant or collateral relative of the aggrieved The court, justice or judge shall docket the petition and act upon it
party within the fourth civil degree of consanguinity or affinity, in immediately.
default of those mentioned in the preceding paragraph; or
SEC. 5.Contents of Petition.The petition shall be signed and verified
3. Any concerned citizen, organization, association or institution, if and shall allege the following:
there is no known member of the immediate family or relative of the
aggrieved party. 1. The personal circumstances of the petitioner;

The filing of a petition by the aggrieved party suspends the right of 2. The name and personal circumstances of the respondent
all other authorized parties to file similar petitions. Likewise, the responsible for the threat, act or omission, or, if the name is unknown
filing of the petition by an authorized party on behalf of the or uncertain, the respondent may be described by an assumed
aggrieved party suspends the right of all others, observing the order appellation;
established herein.
3. The right to life, liberty and security of the aggrieved party
SEC. 3.Where to File.The petition may be filed on any day and at violated or threatened with violation by an unlawful act or omission
any time with the Regional Trial Court of the place where the threat, of the respondent, and how such threat or violation is committed
act or omission was committed or any of its elements occurred, or with the attendant circumstances detailed in supporting affidavits;
with the Sandiganbayan, the Court of Appeals, the Supreme Court,
or any justice of such courts. The writ shall be enforceable anywhere 4. The investigation conducted, if any, specifying the names,
in the Philippines. personal circumstances, and addresses of the investigating authority
or individuals, as well as the manner and conduct of the
When issued by a Regional Trial Court or any judge thereof, the writ investigation,
shall be returnable before such court or judge. together with any report;
5. The actions and recourses taken by the petitioner to determine the 2. The steps or actions taken by the respondent to determine the fate
fate or whereabouts of the aggrieved party and the identity of the or whereabouts of the aggrieved party and the person or persons
person responsible for the threat, act or omission; and responsible for the threat, act or omission;

6. The relief prayed for. The petition may include a general prayer 3. All relevant information in the possession of the respondent
for other just and equitable reliefs. pertaining to the threat, act or omission against the aggrieved party;
and
SEC. 6.Issuance of the Writ.Upon the filing of the petition, the
court, justice or judge shall immediately order the issuance of the 4. If the respondent is a public official or employee, the return shall
writ if on its face it ought to issue. The clerk of court shall issue the further state the actions that have been or will still be taken:
writ under the seal of the court; or in case of urgent necessity, the
justice or the judge may issue the writ under his or her own hand, i. to verify the identity of the aggrieved party;
and may deputize any officer or person to serve it.
ii. to recover and preserve evidence related to the
The writ shall also set the date and time for summary hearing of the death or disappearance of the person identified in the
petition which shall not be later than seven (7) days from the date of petition which may aidin the prosecution of the
its issuance. person or persons responsible;
iii. to identify witnesses and obtain statements from
SEC. 7.Penalty for Refusing to Issue or Serve the Writ.A clerk of them concerningthe death or disappearance;
court who refuses to issue the writ after its allowance, or a deputized iv. to determine the cause, manner, location and time of
person who refuses to serve the same, shall be punished by the court, death ordisappearance as well as any pattern or
justice or judge for contempt without prejudice to other disciplinary practice that may havebrought about the death or
actions. disappearance;
v. to identify and apprehend the person or persons
SEC. 8.How the Writ is Served. The writ shall be served upon the involved in thedeath or disappearance; and
respondent by a judicial officer or by a person deputized by the vi. to bring the suspected offenders before a competent
court, justice or judge who shall retain a copy on which to make a court.
return of service. In case the writ cannot be served personally on the
respondent, the rules on substituted service shall apply. The return shall also state other matters relevant to the investigation,
its resolution and the prosecution of the case.
SEC. 9.Return; Contents.Within seventy-two (72) hours after
service of the writ, the respondent shall file a verified written return A general denial of the allegations in the petition shall not be
together with supporting affidavits which shall, among other things, allowed.
contain the following:
SEC. 10.Defenses not Pleaded Deemed Waived.All defenses shall
1. The lawful defenses to show that the respondent did not violate or be raised in the return, otherwise, they shall be deemed waived.
threaten with violation the right to life, liberty and security of the
aggrieved party, through any act or omission; SEC. 11.Prohibited Pleadings and Motions.The following pleadings
and motions are prohibited:
organization, association or institution referred to in Section 3(c) of
1. Motion to dismiss; this Rule, the protection may be extended to the officers involved.
2. Motion for extension of time to file return, opposition, affidavit,
position paper and other pleadings; The Supreme Court shall accredit the persons and private institutions
3. Dilatory motion for postponement; that shall extend temporary protection to the petitioner or the
4. Motion for a bill of particulars; aggrieved party and any member of the immediate family, in
5. Counterclaim or cross-claim; accordance with guidelines which it shall issue.
6. Third-party complaint;
7. Reply; The accredited persons and private institutions shall comply with the
8. Motion to declare respondent in default; rules and conditions that may be imposed by the court, justice or
9. Intervention; judge.
10. Memorandum;
11. Motion for reconsideration of interlocutory orders or interim (b) Inspection Order. The court, justice or judge, upon verified
relief orders; and motion and after due hearing, may order any person in possession or
12. Petition for certiorari, mandamus or prohibition against any control of a designated land or other property, to permit entry for the
interlocutory order. purpose of inspecting, measuring, surveying, or photographing the
property or any relevant object or operation thereon.
SEC. 12.Effect of Failure to File Return.In case the respondent
fails to file a return, the court, justice or judge shall proceed to hear The motion shall state in detail the place or places to be inspected. It
the petition ex parte. shall be supported by affidavits or testimonies of witnesses having
personal knowledge of the enforced disappearance or whereabouts of
SEC. 13.Summary Hearing.The hearing on the petition shall be the aggrieved party.
summary. However, the court, justice or judge may call for a
preliminary conference to simplify the issues and determine the If the motion is opposed on the ground of national security or of the
possibility of obtaining stipulations and admissions from the parties. privileged nature of the information, the court, justice or judge may
conduct a hearing in chambers to determine the merit of the
The hearing shall be from day to day until completed and given the opposition.
same priority as petitions for habeas corpus.
The movant must show that the inspection order is necessary to
SEC. 14.Interim Reliefs.Upon filing of the petition or at anytime establish the right of the aggrieved party alleged to be threatened or
before final judgment, the court, justice or judge may grant any of violated.
the following reliefs:
The inspection order shall specify the person or persons authorized
(a) Temporary Protection Order. The court, justice or judge, upon to make the inspection and the date, time, place and manner of
motion or motuproprio, may order that the petitioner or the aggrieved making the inspection and may prescribe other conditions to protect
party and any member of the immediate family be protected in a the constitutional rights of all parties. The order shall expire five (5)
government agency or by an accredited person or private institution days after the date of its issuance, unless extended for justifiable
capable of keeping and securing their safety. If the petitioner is an reasons.
(c) Production Order. The court, justice or judge, upon verified
motion and after due hearing, may order any person in possession, SEC. 17.Burden of Proof and Standard of Diligence Required. The
custody or control of any designated documents, papers, books, parties shall establish their claims by substantial evidence.
accounts, letters, photographs, objects or tangible things, or objects
in digitized or electronic form, which constitute or contain evidence The respondent who is a private individual or entity must prove that
relevant to the petition or thereturn, to produce and permit their ordinary diligence as required by applicable laws, rules and
inspection, copying or photographing by or on behalf of the movant. regulations was observed in the performance of duty.

The motion may be opposed on the ground of national security or of The respondent who is a public official or employee must prove that
the privileged nature of the information, in which case the court, extraordinary diligence as required by applicable laws, rules and
justice or judge may conduct a hearing in chambers to determine the regulations wasobserved in the performance of duty.
merit of the opposition.
The respondent public official or employee cannot invoke the
The court, justice or judge shall prescribe other conditions to protect presumption that official duty has been regularly performed to evade
the constitutional rights of all the parties. responsibility or liability.

(d) Witness Protection Order. The court, justice or judge, upon SEC. 18.Judgment.The court shall render judgment within ten (10)
motion or motuproprio, may refer the witnesses to the Department of days from the time the petition is submitted for decision. If the
Justice for admission to the Witness Protection, Security and Benefit allegations in the petition are proven by substantial evidence, the
Program, pursuant to Republic Act No. 6981. court shall grant the privilege of the writ and such reliefs as may be
proper and appropriate; otherwise, the privilege shall be denied.
The court, justice or judge may also refer the witnesses to other
government agencies, or to accredited persons or private institutions SEC. 19.Appeal.Any party may appeal from the final judgment or
capable of keeping and securing their safety. order to the Supreme Court under Rule 45. The appeal may raise
questions of fact or law or both.
SEC. 15.Availability of Interim Reliefs to Respondent.Upon
verified motion of the respondent and after due hearing, the court, The period of appeal shall be five (5) working days from the date of
justice or judge may issue an inspection order or production order notice of the adverse judgment.
under paragraphs (b) and (c) of the preceding section.
The appeal shall be given the same priority as in habeas corpus
A motion for inspection order under this section shall be supported cases.
by affidavits or testimonies of witnesses having personal knowledge
of the defenses of the respondent. SEC. 20.Archiving and Revival of Cases.The court shall not dismiss
the petition, but shall archive it, if upon its determination it cannot
SEC. 16.Contempt.The court, justice or judge may order the proceed for a valid cause such as the failure of petitioner or
respondent who refuses to make a return, or who makes a false witnesses to appear due to threats on their lives.
return, or any person who otherwise disobeys or resists a lawful
process or order of the court to be punished for contempt. The A periodic review of the archived cases shall be made by the amparo
contemnor may be imprisoned or imposed a fine. court that shall, motuproprio or upon motion by any party, order their
revival when ready for further proceedings. The petition shall be
dismissed with prejudice upon failure to prosecute the case after the SEC. 26.Applicability to Pending Cases.This Rule shall govern
lapse of two (2) years from notice to the petitioner of the order cases involving extralegal killings and enforced disappearances or
archiving the case. threats thereof pending in the trial and appellate courts.

The clerks of court shall submit to the Office of the Court SEC. 27.Effectivity.This Rule shall take effect on October 24, 2007,
Administrator a consolidated list of archived cases under this Rule following its publication in three (3) newspapers of general
not later than the first week of January of every year. circulation.

SEC. 21.Institution of Separate Actions.This Rule shall not


preclude the filing of separate criminal, civil or administrative I. SPEEDY DISPOSATION OF CASES
actions. Section 16, Art. III. All persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial, or
SEC. 22.Effect of Filing of a Criminal Action.When a criminal administrative bodies.
action has been commenced, no separate petition for the writ shall be
filed. The reliefs under the writ shall be available by motion in the Speedy Trial vs. Speedy Disposition of Cases
criminal case. Speedy trial Speedy disposition of cases
Refers to trial phase only Refers to disposition of cases (All
The procedure under this Rule shall govern the disposition of the phases)
reliefs available under the writ of amparo. Criminal cases only Judicial, quasi-judicial or admin.
Proceedings
SEC. 23.Consolidation.When a criminal action is filed subsequent to
the filing of a petition for the writ, the latter shall be consolidated · Periods for decision for courts (Sec. 15, Art. VIII)
with the criminal action. · SC: 24 months from submission
· All lower collegiate courts: 12 months unless reduced by
When a criminal action and a separate civil action are filed SC
subsequent to a petition for a writ of amparo, the latter shall be · All other lower courts: 3 months
consolidated with the criminal action.
Periods for decision for Constitutional Commissions (Sec 7, Art.
After consolidation, the procedure under this Rule shall continue to IX-A)
apply to the disposition of the reliefs in the petition.  60 days from date of submission for decision or resolution
SEC. 24.Substantive Rights.This Rule shall not diminish, increase Factors considered in determining whether the right is violated
or modify substantive rights recognized and protected by the 1. Length of delay
Constitution. 2. Reason of delay
3. Assertion of the right or failure to assert it
SEC. 25.Suppletory Application of the Rules of Court.The Rules of 4. Prejudice caused by delay
Court shall apply suppletorily insofar as it is not inconsistent with
this Rule.
Remedy in case there has been unreasonable delay in resolution 2. Witness – only when an incriminating question is asked, since the
of a case: witness has no way of knowing in advance the nature or effect of the
Dismissal through mandamus question to be put to him

J. RIGHT AGAINST SELF-INCRIMINATION - He cannot invoke right to self-incrimination when:


Section 17, Art. III. No person shall be compelled to be a witness a) The question is relevant and otherwise allowed evenif the
against himself. answer may tend to incriminate him or subject him to civil
liability
Based on: b) the question relates to past criminality for which
thewitness can no longer be prosecuted
1. Humanitarian reasons – it is intended to prevent the State, with c) he has been previously granted immunity under avalidly
all its coercive powers, from extracting from the suspect testimony enacted statute
that may convict him;
· Only natural persons can invoke this right. Judicial persons are
2. Practical reasons – a person subjected to such compulsion is subject to the visitorial powers of the state in order to determine
likely to perjure himself for his own protection compliance with the conditions of the charter granted to them.

Applicable to: Scope:

· Criminal prosecutions, government proceedings, including civil (1) Testimonial Compulsion


actions and administrative or legislative investigations
· In Villaflor v. Summers, since the “kernel of the privilege” was the
Transactional Immunity Statute – testimony of any person or prohibition of “testimonial compulsion”, the Court was willing to
whose possession of documents or other evidence necessary or compel a pregnant woman accused of adultery to submit to the
convenient to determine the truth in any investigation conducted is indignity of being tested for pregnancy. Being purely a mechanical
immune from criminal prosecution for an offense to which such act, it is not a violation of her constitutional right against self-
compelled testimony relates. incrimination.

Use and Fruit Immunity Statute – prohibits the use of the witness' (2) Production of Documents, Papers and Chattels. Exception: when
compelledtestimony and its fruit in any manner in connection with books of accounts are to be examined in the exercise of police power
the criminal prosecution for an offense to which such compelled and power of taxation.
testimony relates.
· What is prohibited is the use of physical or moral compulsion to
May be Claimed by: extort communication from the witness or to otherwise elicit
evidence which would not exist were it not for the actions compelled
1. Accused – at all times; there is a reasonable assumption that the from the witness.
purpose of his interrogation will be to incriminate him
· The right does not prohibit the examination of the body of the
accused or the use of findings with respect to his body as physical
evidence. Hence, the fingerprinting of an accused would not violate liquidation of some debtor obligation, real or pretended, against his
the right against self-incrimination. However, obtaining a sample of will
the handwriting of the accused would violate this right if he is
charged for falsification. General Rule
No involuntary service in any form shall exist.
· The accused cannot be compelled to produce a private document in
his possession which might tend to incriminate him. However, a Exceptions
third person in custody of the document may be compelled to
produce it. 1. Punishment for a crime for which the party shall have been duly
convicted (Sec. 18, Art. III)

2. Personal military or civil service in the interest of national


defense
Right May be Waived: (Sec. 4, Art. II)
- Either:
a) Directly, or 3. Naval enlistment – remain in service until the end of voyage so
b) By failure to invoke it PROVIDED the waiver is certain that the crew would not desert the ship, making it difficult for the
andunequivocal and intelligently and willingly made. owners to recruit new hands to continue the voyage (Robertson vs
Baldwin)
Section 18 (1), Art. III. No person shall be detained solely by
reason of his political beliefs and aspirations. 4. Posse comitatus– in pursuit of persons who might have violated
the law, the authorities might command all male inhabitants of a
J. RIGHT AGAINST INVOLUNTARY SERVITUDE certain age to assist them (US vsPompeya)
Section 18 (2), Art. III. No involuntary servitude in any form
shall exist except as a punishment for a crime whereof the party 5. Return to work order in industries affected with public
shall have been duly convicted. interest (KapisananngManggagawasaKahoyvsGotamco)

Involuntary Servitude – the condition of one who is compelled by 6. Patria Potestas– unemancipated minors are obliged to obey their
force, coercion, or imprisonment, and against his will, to labor for parents so long as they are under parental power and to observe
another, whether he is paid or not. respect and reverence to them always (Art. 311, Civil Code)

Involuntary Servitude Includes


US vsPompeya An Act providing for the method
(1) Slavery –civil relation in which one man has absolute power by which the people of the town
over the life, fortune and liberty of another; may be called upon to render
assistance for the protection of
(2) Peonage – a condition of enforced servitude by which the the public and the preservation of
servitor is restrained of his liberty and compelled to labor in peace and good order is
constitutional. It was enacted in
the exercise of the police power (2) It must not be applied arbitrarily.
of the state and does not violate (3) It must not be unacceptable to contemporary society
the constitutional prohibition on (4) It must not be excessive, i.e. it must serve a penal purpose more
involuntary servitude. effectively than a less severe punishment would.
Pollock vs Williams No indebtedness warrants a
suspension of the right to be free Excessive Fine
from compulsory service, and no
state can make the quitting of · A fine is excessive, when under any circumstance, it is
work any component of a crime, disproportionate to the offense.
or make criminal sanctions
available for holding unwilling Note: Fr. Bernas says that the accused cannot be convicted of the
persons to labor. crime to which the punishment is attached if the court finds that the
punishment is cruel, degrading or inhuman.
K. CRUEL AND INHUMAN PUNISHMENT Reason: Without a valid penalty, the law is not a penal law.
Section 19, Art. III.
1. Excessive fines shall not be imposed, nor cruel, degrading or
inhuman punishment inflicted. Neither shall death penalty be L. NON IMPRISONMENT FOR DEBT
imposed, unless, for compelling reasons involving heinous Section 20, Art. III. No person shall be imprisoned for debt or
crimes, the Congress hereafter provides for it. Any death penalty non-payment of a poll tax.
already imposed shall be reduced to reclusion perpetua.
2. The employment of physical, psychological, or degrading Forhumanitarian reasons… an added guaranty of the liberty of
punishment against any prisoner or detainee or the use of persons against their incarceration for the enforcement of purely
substandard or inadequate penal facilities under subhuman private debts because of their misfortune of being poor
conditions shall be dealt with by law.
Debt – any civil obligation arising from a contract, expressed or
When is a penalty “cruel, degrading and inhuman”? implied, resulting in any liability to pay in money.

(1) A penalty is cruel and inhuman if it involves torture or lingering Scope of guaranty against imprisonment for non-payment of
suffering. debt
Ex. Being drawn and quartered.
· If an accused fails to pay the fine imposed upon him, this may
(2) A penalty is degrading if it exposes a person to public result in his subsidiary imprisonment because his liability is ex
humiliation. Ex. Being tarred and feathered, then paraded throughout delicto and not excontractu.
town.
A FRAUDULENT debt may result in the imprisonment of the
Standards Used debtor if:

(1) The punishment must not be so severe as to be degrading to the 1. The fraudulent debt constitutes a crime such as estafa; and
dignity of human beings. 2. The accused has been duly convicted.
(2) When a law and an ordinance punish the same act (2nd
POLL TAX sentence of
Sec. 21)
General Rule: Non-payment of taxes is punishable with
imprisonment. Same Offense
Exception: Failure to pay a poll tax
Requisites for a valid defense of double jeopardy:
Poll tax – a specific sum levied upon every person belonging to a
certain class without regard to his property or occupation. (1) First jeopardy must have attached prior to the second.
(2) The first jeopardy must have terminated.
· A tax is not a debt since it is an obligation arising from law. (3) The second jeopardy must be for the same offense as that in the
Hence, itsnon-payment maybe validly punished with first.
imprisonment.
When does jeopardy ATTACH: (1st requisite)
M. DOUBLE JEOPARDY
Section 21, Art. III. No person shall be twice put in jeopardy of (a) A person is charged
punishment for the same offense. If an act is punished by a law
and an ordinance, conviction or acquittal under either shall (b) Under a complaint or information sufficient in form and
constitute a bar to another prosecution for the same act. substance to sustain a conviction

Double jeopardy – when a person was charged with an offense and (c) Before a court of competent jurisdiction
the case was terminated by acquittal or conviction or in any other
manner without his consent, he cannot again be charged with the (d) After the person is arraigned
same or identical offense.
(e) Such person enters a valid plea.
Requisites of Double Jeopardy
When does jeopardy NOT attach:
1. valid complaint or information
2. filed before a competent court (a) If information does not charge any offense
3. to which defendant has pleaded, and
4. defendant was previously acquitted or convicted or the case (b) If, upon pleading guilty, the accused presents evidence of
dismissed or otherwise terminated without his express consent. complete selfdefense, and the court thereafter acquits him without
entering a new plea of not guilty for accused.

Two (2) Kinds of Double Jeopardy (c) If the information for an offense cognizable by the RTC is filed
with the MTC.
(1) When a person is put twice in jeopardy of punishment for the
same offense (1st sentence of Section 21) (d) If a complaint filed for preliminary investigation is dismissed.
When does first jeopardy TERMINATE: (2ND REQUISITE)
What are considered to be the “SAME OFFENSE”:
1) Acquittal
2) Conviction (a) Exact identity between the offenses charged in the first and
3) Dismissal W/O the EXPRESS consent of the accused second cases.
4) Dismissal on the merits.
(b) One offense is an attempt to commit or a frustration of the other
offense.

Examples of termination of jeopardy: (c) One offense is necessarily included or necessary includes the
other.
(a) Dismissal based on violation of the right to a speedy trial. This
amounts to an acquittal. · Note: where a single act results in the violation of different laws or
different provisions of the same law, the prosecution for one will not
(b) Dismissal based on a demurrer to evidence. This is a dismissal on bar the other so long as none of the exceptions apply.
the merits.
Same Act
(c) Dismissal on motion of the prosecution, subsequent to a motion
for reinvestigation filed by the accused. · Double jeopardy will result if the act punishable under the law and
the ordinance are the same. For there to be double jeopardy, it is not
(d) Discharge of an accused to be a state witness. This amounts to an necessary that the offense be the same.
acquittal.
Supervening Facts
When can the PROSECUTION appeal from an order of
dismissal: 1) Under the Rules of Court, a conviction for an offense will not bar
a prosecution for an offense which necessarily includes the offense
(a) If dismissal is on motion of the accused. Exception: If motion is charged in the former information where:
based on violation of the right to a speedy trial or on a demurrer to
evidence. (a) The graver offense developed due to a supervening fact arising
from the same act or omission constituting the former charge.
(b) If dismissal does NOT amount to an acquittal or dismissal on the
merits (b) The facts constituting the graver offense became known or were
discovered only after the filing of the former information.
(c) If the question to be passed upon is purely legal.
(c) The plea of guilty to the lesser offense was made without the
(d) If the dismissal violates the right of due process of the consent of the fiscal and the offended party.
prosecution.

(e) If the dismissal was made with grave abuse of discretion.


2) Under (1)(b), if the facts could have been discovered by the (5) One which assumes to regulate civil rights and remedies only
prosecution but were not discovered because of the prosecution’s BUT, in effect, imposes a penalty or deprivation of a right, which,
incompetence, it would not be considered a supervening event. when done, was lawful.

Effect of appeal by the accused (6) One which deprives a person accused of a crime of some lawful
protection to which he has become entitled such as the protection of
· If the accused appeals his conviction, he WAIVES his right to a former conviction or acquittal, or a proclamation of amnesty. (In
plead double jeopardy. The whole case will be open to review by the Re Kay VillegasKami)
appellate court. Such court may even increase the penalties imposed
on the accused by the trial court. Characteristics of Ex Post Facto Law

· In Almario v. CA, the Court held that the delays were not (a) Must refer to criminal matters
unreasonable; hence, there was no denial of the right to speedy trial. (b) Prejudicial to the accused
Second, thedismissal was with the consent of the accused. Hence, (c) Retroactive in application
reinstatement did not violate the right against double jeopardy.
· In Lacson v. Exec. Sec., the Court held that in general, ex post
N. EX POST FACTO LAWS AND BILL OF ATTAINDER facto law prohibits retrospectivity of penal laws. RA No. 8249 is not
Section 22, Art. III. No ex post facto law or bill of attainder shall a penal law.... The contention that the new law diluted their right to a
be enacted. two-tiered appeal is incorrect because “the right to appeal is not a
natural right but statutory in nature that can be regulated by law. RA
Kinds of Ex Post Facto Laws 8249 pertains only to matters of procedure, and being merely an
amendatory statute it does not partake the nature of ex post facto
(1) One which makes an action done before the passing of the law, law.”
and which was innocent when done, criminal, and punishes such
action. · In Calder v. Bull, the Court said that when the law alters the legal
rules of evidence or mode of trial, it is an ex post facto law.
(2) One which aggravates the crime or makes it greater than when it Exception: (Beazell v. Ohio) unless the changes operate only in
was committed. limited and unsubstantial manner to the disadvantage of the accused.

(3) One which changes the punishment and inflicts a greater · In Bayot v. Sandiganbayan, the accused was convicted by the
punishment than that which the law annexed to the crime when it Sandiganbayan for estafa on May 30, 1980. Accused appealed. On
was committed. March 16, 1982, BP Blg. 195 was passed authorizing suspension of
public
(4) One which alters the legal rules of evidence and receives less officers against whom an information may be pending at any stage.
testimony than the law required at the time of the commission of the On July 22, 1982, the court suspended the accused. The Supreme
offense in order to convict the accused. Court ruled that Art. 24 of the Revised Penal Code that suspension of
an officer during trial shall not be considered a penalty. The
suspension in the case is merely a preventive and not a penal
measure which therefore does not come under the ex post facto Public Order and Safety – the security of human lives, liberty, and
prohibition. property against the activities of invaders, insurrectionists, and
rebels.
BILL OF ATTAINDER
· RA No. 4200 known as the Anti-Wiretapping Law
Bill of attainder – is a legislative act which inflicts punishment provides penalties for specific violations of private
without judicial trial. If the punishment be less than death, the act is communication. Under Sec. 3 of the Actallows court-
termed a bill of pains and penalties.” (Cummings v. Missouri) authorized taps, under specific conditions for the crimes of
treason, espionage, provoking war and disloyalty in case of
(All Bills of Attainder are Ex Post Facto Laws) war, piracy, mutiny in the high seas, rebellion, conspiracy
and proposal to commit rebellion, inciting rebellion,
Elements of Bill of Attainder sedition, conspiracy to commit sedition, inciting to sedition,
1. There must be a law. kidnapping.
2. The law imposes a penal burden on a named individual or easily
ascertainable members of a group. P. RIGHT TO PRIVACY
3. There is a direct imposition of penal burden without judicial trial.
· In Ople v. Torres, the right to privacy being a fundamental right,
O. PRIVACY OF COMMUNICATION the government has the burden of proof to show that a statute (AO
Section 3(1), Art. III. The privacy of communication and no. 308 in this case) is justified by some compelling state interest and
correspondence shall be inviolable except upon lawful order of that it is narrowly drawn.
the court, or when public safety or order requires otherwise, as
prescribed by law. “In no uncertain terms, we also underscores that the right to privacy
does not bar all incursions into individual privacy. The right is not
Forms of Correspondences and Communication Covered intended to stifle scientific and technological advancements that
enhance public service and the common good. It merely requires that
1. letters the law be narrowly focused.” Intrusions into the right must be
2. messages accompanied by proper safeguards and well-defined standards to
3. telephone calls prevent unconstitutional invasions.
4. telegrams, and
5. the likes · In Roe v. Wade, the Court held that abortions are permissible for
any reason a woman chooses, up until the "point at which the fetus
Intrusion into the Privacy of Communication May Be Allowed becomes ‘viable,’ that is, potentially able to live outside the mother's
1. Upon lawful order of the court, or womb.
2. When public safety or order requires otherwise as prescribed by
law. (a) The Constitution does not explicitly mention any right to privacy
but the Court has recognized that such right does exist in the
· When intrusion is made without a judicial order, it would have to Constitution. The Court deemed abortion a fundamental right under
be based upon a government official's assessment that public safety the United States Constitution, thereby subjecting all laws attempting
and orderdemand such intrusion. to restrict it to the standard of strict scrutiny. Where certain
“fundamental rights” are involved, the Court has held that regulation · The Rule takes effect on 2 February 2008, following its publication
limiting these rights may be justified only by a “compelling state in three (3) newspapers of general circulation.
interest.”
Who may file a petition for the issuance of a writ of habeas data?
(b) The right to privacy is broad enough to encompass a woman’s
decision whether or not to terminate her pregnancy. But a woman’s · General rule: The aggrieved party.
right to terminate her pregnancy at whatever time, in whatever way · Exceptions: In cases of extralegal killings and enforced
and for whatever reason she alone chooses is NOT absolute. While disappearances, the petition may be filed by:
recognizing the right to privacy, the Court also acknowledges that
some state regulation in areas protected by a right is appropriate. A (1) Any member of the immediate family of the aggrieved party,
state may properly assert important interests in safeguarding health, namely: the spouse, children and parents; or
in maintaining medical standards, and in protecting potential life.
(2) Any ascendant, descendant or collateral relative of the aggrieved
Q. WRIT OF HABEAS DATA party within the fourth civil degree of consanguinity or affinity, in
default of those mentioned in the preceding paragraph.
Writ of habeas data – is a remedy available to any person whose
right to privacy in life, liberty or security is violated or threatened by Where can the petition be filed?
an unlawful act or omission of a public official or employee, or of a
private individual or entity engaged in the gathering, collecting or (1) Regional Trial Court where the petitioner or respondent resides,
storing of data or information regarding the person, family, home or that which has jurisdiction over the place where the data or
and correspondence of the aggrieved party. information is gathered, collected or stored, at the option of the
petitioner.
· It is governed by The Rule on the Writ of Habeas Data (A.M. No.
08-1-16- SC – full text), which was approved by the Supreme Court (2) Supreme Court;
on 22 January 2008. That Rule shall not diminish, increase or modify
substantive rights. (3) Court of Appeals; or
Constitutional Basis
Section 5(5), Art. VIII. Promulgate rules concerning the (4) Sandiganbayan, when the action concerns public data files of
protection and enforcement of constitutional rights, pleading, government offices.
practice, and procedure in all courts, the admission to the
practice of law, the integrated bar, and legal assistance to the · No docket and other lawful fees shall be required from an indigent
under-privileged. Such rules shall provide a simplified and petitioner. The petition of the indigent shall be docketed and acted
inexpensive procedure for the speedy disposition of cases, shall upon immediately, without prejudice to subsequent submission of
be uniform for all courts of the same grade, and shall not proof of indigency not later than 15 days from the filing of the
diminish, increase, or modify substantive rights. Rules of petition.
procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court. The verified written petition shall allege the following:

(a) The personal circumstances of the petitioner and the respondent;


copy on which to make a return of service. In case the writ cannot be
(b) The manner the right to privacy is violated or threatened and how served personally on the respondent, the rules on substituted service
it affects the right to life, liberty or security of the aggrieved party; shall apply.

(c) The actions and recourses taken by the petitioner to secure the · The respondent shall file a verified written return together with
data or supporting affidavits within five (5) work days from service of the
information; writ, which period may be reasonably extended by the Court for
justifiable reasons.
(d) The location of the files, registers or databases, the government
office,and the person in charge, in possession or in control of the Contents of Return
data or information, if known;
(a) The lawful defenses such as national security, state secrets,
(e) The reliefs prayed for, which may include the updating, privileged communication, confidentiality of the source of
rectification, suppression or destruction of the database or information of media and others;
information or files kept by the respondent. In case of threats, the
relief may include a prayer for an order enjoining the act complained (b) In case of respondent in charge, in possession or in control of the
of; and data or information subject of the petition:

(f) Such other relevant reliefs as are just and equitable. (i) a disclosure of the data or information about the petitioner, the
nature of such data or information, and the purpose for its collection;
When is the writ of habeas data issued?
(ii) the steps or actions taken by the respondent to ensure the security
Upon the filing of the petition, the court, justice or judge shall and confidentiality of the data or information; and
immediately order the issuance of the writ if on its face it ought to
issue. The clerk of court shall issue the writ under the seal of the (iii) the currency and accuracy of the data or information held; and
court and cause it to be served within three (3) days from its
issuance; or, in case of urgent necessity, the justice or judge may (c) Other allegations relevant to the resolution of the proceeding.
issue the writ under his or her own hand, and may deputize any
officer or person to serve it. The writ shall also set the date and time · When the respondent fails to file a return, the court, justice or judge
for summary hearing of the petition which shall not be later than ten shall proceed to hear the petition ex parte, granting the petitioner
(10) work days from the date of its issuance. such relief as the petition may warrant unless the court in its
discretion requires the petitioner to submit evidence.
· A clerk of court who refuses to issue the writ after its allowance, or
a deputized person who refuses to serve the same, shall be punished · Instead of having the hearing in open court, it can be done in
by the court, justice or judge for contempt without prejudice to other chambers when the respondent invokes the defense that the release
disciplinary actions. of the data or information in question shall compromise national
security or state secrets, or when the data or information cannot be
· The writ shall be served upon the respondent by the officer or divulged to the public due to its nature or privileged character.
person deputized by the court, justice or judge who shall retain a
· The hearing on the petition shall be summary. However, the court,
justice or judge may call for a preliminary conference to simplify the · The Writ of Amparo– a writ designed to protect the most
issues and determine the possibility of obtaining stipulations and basic right of a human being. These are the right to life,
admissions from the parties. liberty andsecurity guaranteed by the Constitution.

· Upon its finality, the judgment shall be enforced by the sheriff or R. ACCESS TO PUBLIC INFORMATION
any lawful officer as may be designated by the court, justice or judge Section 7, Art. III. The right of the people to information on
within five (5) work days. matters of public concern shall be recognized. Access to official
records, and to documents and papers pertaining to official acts,
· When a criminal action has been commenced, no separate petition transactions, or decisions, as well as to government research data
for the writ shall be filed, but the reliefs under the writ shall be used as basis for policy development, shall be afforded the
available by motion in the criminal case, and the procedure under citizen, subject to such limitations as may be provided by law.
this Rule shall govern the disposition of the reliefs available under
the writ of habeas data. · the citizenry has a right to know what is going on in the country
and in his government so he can express his views thereon
· When a criminal action and a separate civil action are filed knowledgeably and intelligently.
subsequent to a petition for a writ of habeas data, the petition shall be
consolidated with the criminal action. After consolidation, the Rights Guaranteed
procedure under this Rule shall continue to govern the disposition of
the reliefs in the petition. 1. Right to information on matters of public concern ; and

· The introduction of the Writ of Habeas Data into Philippine Justice 2. Corollary right of access to official records and documents.
System complemented several writs used in the Philippines. These
writs which protect the rights of the individual against the state are as · These are political rights that are available to citizens only (Bernas,
follows: Philippine Constitution, p. 85).
· The Writ of Habeas Corpus – a writ ordering a person
who detained another to produce the body and bring it before Limitations: “As may be provided by law”
a judge orcourt. Its purpose is to determine whether the
detention is lawful or not; Valmonte v Belmonte 1989 The people have a right to access
official records but they can’t
· The Writ of Mandamus – a writ ordering a governmental compel custodians of official
agency to perform a ministerial function; records to prepare lists, abstracts,
summaries and the like, such not
· The Writ of Prohibition – a writ ordering a person to being based on a demandable
prohibit thecommission of an illegal act; legal right.

· The Writ of Certiorari – a writ ordering a person to Then right to privacy belongs to
correct anerroneous act committed with grave abuse of the individual and must be
discretion; and invoked by the individual. A
public agency like the GSIS · Freedom of Expression is available only insofar as it is exercised
cannot invoke the right to privacy. for the discussion of matters affecting the public interest. Purely
Baldoza v Dimaano 1976 Judges cannot prohibit access to private interest matters do not come within the guaranty (invasion of
judicial records. However, a judge privacy is not sanctioned by the Constitution).
may regulate the manner in which
persons desiring to inspect, · covers ideas that are acceptable to the majority and the unorthodox
examine or copy records in his view.(One of the functions of this freedom is “to invite dispute” –
office, may exercise their rights. US Supreme Court; “I may not agree with what you say, but I will
Legaspi v Civil Service Personal interest is not required in defend to the death your right to say it.” - Voltaire)
Commission asserting the right to information
1987 on matters of public concern. · The freedom to speak includes the right to silent. (This freedom
What matters constitute “public was meant not only to protect the minority who want to talk but also
concern” should be determined by to benefit the majority who refuse to listen. - Socrates)
the court on a case to case basis.
Chavez v PCGG 1998 Public concern (def.) – writings Importance
coming into the hands of public
officers in connection with their The ultimate good desired is better reached by a free trade in ideas –
official functions Ill-gotten wealth that the best test of truth is the power of the thought to get itself
is, by its nature, a matter of public accepted in the competition of the market; and that truth is the only
concern. Privileged ground upon which theirwishes safely can be carried out.
communication: (1) national
security, (2) trade Modes of Expression
secrets, (3) criminal matters
pending in court, (a) Oral and written language
(b) Symbolisms (e.g. bended knee, salute to the flag, cartoons)
Echegaray case SC held that making the Lethal
Injection Manual inaccessible to Elements of Freedom of Expression
the convict was unconstitutional.
(1) Freedom from prior restraint or censorship
(2) Freedom from subsequent punishment
S. FREEDOM OF EXPRESSION
Freedom From Previous Restraint or Censorship
Freedom of Speech – “at once the instrument and the guaranty and
the bright consummate flower of all liberty.” (Wendell Philips) Section 4, Art. III. No law shall be passed abridging the freedom
of speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for redress of
grievances.
Scope
Censorship – conditions the exercise of freedom of expression upon
the prior approval of the government. Only those ideas acceptable to · In Re: Request for Radio-TV Coverage of the Estrada Trial, the
it are allowed to be disseminated. Court held that the propriety of the Estrada trial involves the
weighing out of the constitutional guarantees of freedom of the press
· Censor, therefore, assumes the role of arbiter for the people, usually and the right to public information, on the one hand, and the
applying his own subjective standards in determining the good and fundamental rights of the accused, on the other hand, along with the
the not. Such is anathema in a free society. constitutional power of a court to control its proceedings in ensuring
a fair and impartial trial... With the possibility of losing not only the
· In New York Times v. United States, the Court held that precious liberty but also the very life of an accused, it behooves all to
prohibition of “prior restraint” is not absolute, although any system make absolutely certain that an accused receives a verdict solely on
of prior restraint comes to court bearing a heavy presumption against the basis of a just and dispassionate judgment...”
its constitutionality.
· The doctrine of freedom of speech was formulated primarily for the
· In Near v. Minnesota, the exceptions to the prohibition of “prior protection of “core speech,” i.e., speech which communicates
restraint is enumerated by the Court, thus: “When a nation is at war, political, social or religious ideas. Commercial speech, however,
many things that might be said in time of peace are such a hindrance does not.
to its effort .... Noone would question but that government might
prevent actual obstruction to its recruiting service or the publication Grosjeanvs American Press Co. There need not be total
of sailing dates of transports or the number or location of troops.... suppression; even restriction of
The security of the community life may be protected against circulation constitutes
incitements to acts of violence and the overthrow by force of orderly censorship
government.” Burgos vs Chief of Staff the search, padlocking and
sealing of the offices of
· In SWS v. Comelec, Sec. 1 of RA No. 9006, the Fair Election Act Metropolitan Mail and We
says that surveys affecting national candidates shall not be published Forum by military authorities,
fifteen(15) days before an election and surveys affecting local resulting in the discontinuance
candidates shall not be published seven days before an election. The of publication of the
provision is challenged as violative of freedom of expression. The newspapers, was held to be prior
Court held that as prior restraint, the rule is presumed to be invalid. restraint
The power of the Comelec over media franchises is limited to Mutucvs COMELEC the COMELEC prohibition
ensuring “equal opportunity, time, space and the right to reply” as against the use of taped jingles
well as to reasonable rates of charges for the use of media facilities in the mobile units used in the
for “public information and forums among candidates.” Here the campaign was held to be
prohibition of speech is direct, absolute and substantial. Nor does the unconstitutional, as it was in the
rule pass the O'Brien test for content related regulation because (1) it nature of censorship
suppresses one type of expression while allowing other types such as Sanidadvs COMELEC the Court annulled the
editorials, etc. and (2) the restriction is greater than what is needed to COMELEC prohibition against
protect government interest because the interest can be protected by radio commentators or
narrower restriction such as subsequent punishment. newspaper columnists from
commenting on the issues PrimiciasvsFugosos The respondent mayor could
involved in the scheduled only reasonably regulate, not
plebiscite on the organic absolutely prohibit, the use of
law creating the Cordillera public places for the purpose
Autonomous Region as an indicated.
unconstitutional restraint on National Press Club vs the Supreme Court upheld the
freedom of expression COMELEC validity of Sec. 11(b), RA 6646,
But... which prohibited any person
making use of the media to sell
Gonzales vs COMELEC the Court upheld the validity of or to give free of charge print
the law which prohibited, except space or air time for campaign
during the prescribed election or other political purposes
period, the making of speeches, except to the COMELEC. This
announcements or commentaries was held to be within the power
for or against the election of any of the COMELEC to supervise
party or candidate for public the enjoyment or utilization of
office. franchises for the operation of
JUSTIFICATION: the media of communication and
inordinate preoccupation of the information, for the purpose of
people with politics tended ensuring equal opportunity, time
toward the neglect of the other and space, and the “right to
serious needs of the nation and reply,” as well as uniform and
the pollution of its suffrages. reasonable rates of charges for
Iglesiani Cristo vs CA The Board of Review for Motion the use of such media facilities.
Pictures and Television Osmeňavs COMELEC SC reaffirmed validity of RA
(BRMPT) has the authority to 6646 as a legitimate exercise of
review the petitioner's television police power. The regulation is
program. However, the Board unrelated to the suppression of
acted with grave abuse of speech, as any restriction on
discretion when it gave an “X- freedom of expression
rating” to the TV program on the occasioned thereby is only
ground of “attacks against incidental and no more than is
another religion.” Such a necessary to achieve the purpose
classification can be justified of promoting equality.
only if there is a showing that NOTE: This is not inconsistent
the tv program would create a with the ruling in PPI vs
clear and present danger of an COMELEC, because in the
evil which the State ought to latter, SC simply said that
prevent. COMELEC cannot procure print
space without paying just · Without this assurance, the individual would hesitate to speak for
compensation. fear that he might be held to account for his speech, or that he might
be provoking the vengeance of the officials he may have criticized.
Adiongvs COMELEC COMELEC's resolution
prohibiting the posting of decals, · Not absolute; subject to police power and may be regulated
and stickers in mobile units like (freedom of expression does not cover ideas offensive to public
cars and other moving vehicles order)
was declared unconstitutional
for infringement of freedom of Right of students to free speech in school premises not absolute
expression. Besides, the
constitutional objective of giving General Rule: a student shall not be expelled or suspended solely on
the rich and poor candidates' the basis of articles he has written
equal opportunity to inform the Exception: when the article materially disrupts class work or
electorate is not violated by the involves substantial disorder or invasion of rights of others, the
posting of decals and stickers on school has the right to discipline its students (in such a case, it may
cars and other vehicles. expel or suspend the student)
“Overbreadth doctrine” =
prohibits the government from Tests of valid governmental interference
achieving its purpose by means (criteria in determining the liability of the individual for ideas
that weep unnecessarily broadly, expressed by him) :
reaching constitutionally
protected as well as unprotected 1. Clear and present danger rule
activity; the government has 2. Dangerous tendency doctrine
gone too far; its legitimate 3. Balance of interest test
interest can be satisfied without
reaching so broadly into the area
of protected freedom. 1. Clear and Present Danger Rule – when words are used in such
Gonzales vs petitioner questioned the circumstance and of such nature as to create a clear and present
katigbak classification of the movie as danger that will bring about the substantive evil that the State has a
“for adults only.” the petition right to prevent. (As formulated by Justice Holmes in Schenck v.
was dismissed because the United States)
Board did not commit grave
abuse of discretion. Clear – causal connection with the danger of the substantive evil
arising from the utterance
Freedom From Subsequent Punishment
Present – time element; imminent and immediate danger (the danger
Section 18(1), Art. III. No person shall be detained solely by must not only be probable but also inevitable). (Gonzales v.
reason of his political beliefs and aspirations. Comelec)
· In ABS-CBN v. Comelec, the Comelec banned “exit polls” in the public rally was invalid as
exercise of its authority to regulate the holders of media franchises there was no showing of the
during the lection period. It contends that “an exit poll has the probability of a clear and
tendency to sow confusion considering the randomness of selecting present danger of an evil that
interviewees.... However, the Court said that exit polls constitute an might arise as a result of the
essential part of the freedoms of speech and of the press. Hence, the meeting. The burden of
Comelec cannot ban totally in the guise of of promoting clean, proving such eventually rests
honest, orderly and credible elections. The ban does not satisfy the on the Mayor.
clear and present danger rule because the evils envisioned are merely
speculative. 2. Dangerous Tendency Doctrine – if the words uttered create a
dangerous tendency of an evil which the State has the right to
Terminiellovs City of · (speech inside an auditorium prevent.(Cabansag v.Fernandez)
Chicago with 800 persons)
· speech is often provocative · Justice Holmes, critique of this doctrine: Every idea is an
and challenging. hence, incitement. If believed, it is acted on unless some other belief
“fighting words” are not outweighs it, or some failure of energy stifles the movement at its
sufficient to convict a person birth.
absent a clear and present
danger of a serious substantive
evil Bayan vs Executive Secretary (f) the Calibrated Pre-emptive
PrimiciasvsFugosos The respondent mayor could Ermita Response Policy is null and void.
only reasonably regulate, not Respondents are enjoined from
absolutely prohibit, the use of using it and to strictly observe the
public places for the purpose requirements of maximum
indicated. tolerance.
· the condition of Manila at Cabansagvs Fernandez It is not necessary that some
that time did not justify the definite or immediate acts of
mayor's fears. there was no force or violence be advocated. It
clear and present danger. is sufficient that such acts be
· decided in 1947 advocated in general terms. A
Navarro vs Villegas (compare with Primicias case) mere tendency toward the evil
SC sustained respondent was enough.
mayor's act of refusing to issue People vs Perez Accused declared: “The Filipinos
a permit enabling students to like myself must use bolos for
hold a public rally. Mayor cutting off (Governor- General)
feared the rally would result to Wood's head for having
public disorder. recommended a bad thing for the
- decided in 1970 Filipinos, for he has killed our
Reyes vsBagatsing the denial of a permit to hold a independence.” He was sentenced
to jail. · It is too general in its terms
· Not limited in time and scope in its application
3. Balance of Interest Test – when particular conduct is regulated in · It if restricts one’s expression of belief in a candidate or one’s
the interest of public order, and the regulation results in an indirect, opinion ofhis or her qualifications,
conditional, partial abridgment of speech, the duty of the courts is to · If it cuts off the flow of media reporting
determine which of the two conflicting interests demands the greater · If the regulatory measure bears no clear and reasonable nexus with
protection under the circumstances presented. (American theconstitutionally sanctioned objective.
Communications Association v. Douds)
The regulation strikes at the freedom of an individual to express his
CLEAR AND DANGEROUS BALANCE OF preference and, by displaying it on his car, to convince others to
PRESENT TENDENCY INTEREST RULE agree with him. A sticker may be furnished by a candidate but once
DANGER RULE the car owner agrees to have it placed in his private vehicle, the
RULE expression becomes a statement by the owner, primarily his own and
liberty is Authority is the issue is resolved in not of anybody else.
preferred preferred the light of the
peculiarcircumstances · The general rule for a speech to be considered libelous or
obtaining in each defamatory is:
particular case
Libel = falsity + actual malice (uttered in full knowledge of its falsity
· In Mutuc v. Comelec, the preferred freedom of expression calls all or with reckless disregard)
the more the utmost respect when what may be curtailed is the
dissemination of information to make more meaningful the equally Exemption: When the subject of the supposed libelous or
vital right of suffrage. defamatory material is a public officer. Defamatory words may be
uttered against them and not be considered libelous. The reason is
When faced with border line situations where freedom (of that 1) they asked for it (“they voluntarily thrust themselves into the
expression) to speak &freedom to know (to information) are invoked public eye and therefore should not be thin-skinned”); 2) it’s a matter
against (vs.) maintaining free and clean elections- the police, local of public interest; and 3) public figures have the opportunity and
officials and COMELEC should lean in favor of freedom. resources to rebut whatever is said against them. (Policarpiovs
Manila Times); ( New York Times vs Sullivan)
For in the ultimate analysis, the freedom of the citizen and the State’s
power to regulate are NOT ANTAGONISTIC. · In New York Times v. Sullivan, The New York Times is protected
under the freedom of speech in publishing paid advertisement, no
There can be no free and honest elections if in the efforts to maintain matter if it contained erroneous claims and facts. Said publication
them, the freedom to speak and the right to know are unduly was not “commercial” in the sense that it communicated information,
curtailed. expressed opinion, recited grievances, protested claimed abuses, and
sought a financial support on behalf of a movement. That the Times
We examine the limits of regulation. J. Feliciano shows that was paid for publishing the advertisement is as immaterial as the fact
regulation of election campaign activity may not pass the test of that newspapers and books are sold.
validity if:
Newspapers do not forfeit the protection they enjoy under speech
freedom just because they publish paid advertisements. Otherwise, · If assembly is to be held at a public place, permit for the use of
newspapers will be discouraged from carrying “editorial such place, and not for the assembly itself, may be validly required.
advertisements” and so might shut off an important outlet for the Power of local officials is merely for regulation and not for
promulgation of information and ideas by persons who do not prohibition. (Primicias v.Fugoso)
themselves have access to publishing facilities.
· Permit for public assembly is not necessary if meeting is to be held
On errors: “Some degree of abuse is inseparable from the proper use in: a private place; the campus of a government-owned or operated
of every thing; and in no instance is this truer than that of the press.” educational institution; and freedom park. (B.P. Blg. 880 - “The
Erroneous statement is inevitable in free debate. Public Assembly Actof 1985')

Moreover, criticism of official conduct does not lose its · In JBL Reyes v. Bagatsing, retired J. JBL Reyes sought a permit
constitutional protection merely because it effective criticism and from the City of Manila to hold a march and rally on Oct 26, 1983 2-
hence diminishes their official reputations. Presence of clear and 5pm from Luneta to gates of US Embassy, and was denied by the
present danger of substantive evil must be proved. Actual Malice Mayor due to Vienna Convention Ordinance and fear of subversives
needs to be proved if a public official wants to recover damages for a may infiltrate the ranks of the demonstrators.
defamatory falsehood relating to his official conduct. “Even a false
statement may be deemed to make a valuable contribution to public Held: no justifiable ground to deny permit because Bill of Rights will
debate since it brings about the clearer perception and livelier prevail over Vienna Ordinance should conflict exist (none proven
impression of truth, produced by its collision with error.” because 500m not measured from gate to US Embassy proper) and
fear of serious injury cannot alone justify suppression of free speech
· In Gonzales v. Kalaw-Katigbak, KapitsaPatalim was classified as and assembly- only clear and present danger of substantive evil.
“For Adults Only” by the MTRCB and was suggested to have certain
portions cut/ deleted. Notes: the Court is called upon to protect the exercise of the cognate
rights to free speech and peaceful assembly…
Held: MTRCB do not have the power to exercise prior restraint. The
power of the MTRCB is limited to the classification of films. TanadavsBagatsing SC sustained the petitioner's
motion compelling the mayor
The test to determine whether a motion picture exceeds the bounds of Manila to issue a permit to
ofpermissible exercise of free speech and, therefore should be hold a rally, but changed the
censored, is the clear and present danger test. meeting place to UgarteField, a
private park
Assembly and Petition MalabananvsRamento (several students were
suspended for 1 year for
· The right to assemble is not subject to prior restraint and may not conducting demonstration in
be conditioned upon the prior issuance of a permit or authorization the premises of a university
from the government authorities. However, the right must be outside the area permitted by
exercised in such a way that it will not prejudice the public welfare. the school authorities) SC
(De la Cruz v. Court ofAppeals) emphasized that the students
did not shed their constitutional
rights to free speech at the (1) Purpose Test
schoolhouse gate, and
permitted the students to re- · ideally, the test should be the purpose for which the assembly is
enroll and finish their studies. held, regardless of the auspices under which it is organized
Villarvs TIP (several students were barred
from re-enrollment for (2) Auspices Test
participating in
demonstrations) while the · EvengelistavsEarnshaw: the mayor of Manila prohibited the
Court upheld the academic members of the Communist Party from holding any kind of meeting,
freedom of institutions of revoking all permits previously granted by him on the ground that
higher learning, which includes the party had been found (by the fiscal's office) to be an illegal
the right to set academic association.
standards to determine under
what circumstances failing · In People v. Bustos, Bustos and several people sent complaint
grades suffice for expulsion of letters via counsel against Justice of Peace Roman Punsalan, who
students, it was held that this charged them with libel.
right cannot be utilized to
discriminate against those who Held: Bustos and the others were acquitted,
exercise their constitutional Ratio: the guarantees of free speech and a free press include the right
rights to peaceful assembly. to criticize judicial conduct. And these people did so in proper
Non vs Dames SC abandons its ruling in channels without undue publicity, believing they were right.
Alcuazvs PSBA (that
enrolment of a student is a Right of Association
semester-to-semester contract Section 8, Art. III. The right of the people, including those
and the school may not be employed in the public and private sectors, to form unions,
compelled to renew the associations, or societies for purposes not contrary to law shall
contract) upholding the not be abridged.
primacy of freedom of
expression, because the The Right of Association is deemed embraced in freedom of
students do expression because the organization can be used as a vehicle for the
not shed theur constitutionally expression of views that have a bearing on public welfare.
protected rights at the school
gate. SSS Employees Assocvs CA right to organize does not carry
PBM Employees Assocvs PBM right to free assembly and with it right to strike
petition prevails over economic VictorianovsElizalde Rope
rights. Workers' Union
Occenavs COMELEC right of association was not
Tests of a lawful assembly violated where political parties
were prohibited from contemporary community
participating in the barangay standards, would
elections to insure the non- find that the work, taken as a
partisanship of the candidates. whole,appeals to the prurient
In re Edillon Bar integration does not interest
compel the lawyer to associate · whether the work depicts, in a
with anyone. Integration does patently
not make a lawyer a member offensive way, sexual conduct
of any group of which he is not specifically
already a member. defined by the applicable law
· whether the work, taken as a
whole, lacks
T. OBSCENITY CASES serious literary, artistic, political
or scientific
US vsKottinger SC acquitted accused who was value
charged of having Justice Douglas, dissent: I do not
offered for sale pictures of half- think we, the
clad members of judges, were ever given the
non-Christian tribes, holding that constitutional power tomake
he had only definitions of obscenity.
presented them in their native Obscenity is a
attire hodgepodge.
People vs Go Pin Accused was convicted for - The Courts should not apply a national standard but the standard of
exhibiting nude the
paintings and pictures, communityin which the material is being tested.
notwithstanding his claim
that he had done so in the interest · In Reno v. ACLU, Communications Decency Act seek to protect
of art. SC, minors from obscenity on the internet.
noting that he has charged · Held: overbroad, vague, unconstitutional.
admission fees to the · Notes: Sexual expression which is indecent but not obscene is
exhibition, held that his purpose protected by the First Amendment.
was commercial,
not merely artistic. The internet is not an “invasive” medium because it requires a series
Pita vs CA SC declared that the of affirmative steps more deliberate and directed than merely turning
determination of what is a dial (tv or radio).
obscene is a judicial function.
Miller vs California Test of Obscenity: There is no effective way to determine the identity or the age of a
· whether the average person, user who is accessing material through email, mail exploders,
applying newsgroups or chat rooms.
Capulong freedom of
The Community Standard as applied to the internet means that any expression over Enrile's “right to
communication available to a nationwide audience will be judged by privacy,” because
the standards of the community most likely to be offended by the Enrile was a public figure and a
message. The effect of CDA is such that when a site is blocked for public figure's right
being “indecent” or “patently offensive” the remaining content even to privacy is narrower than that of
if not indecent cannot be viewed anymore. Imposition of an ordinary
requirements (adult identification number or credit card) would bar citizen. Besides, the movie “Four
adults who do not have a credit card and lack the resources to obtain Days of Revolution (sabini Cruz)”
one from accessing any blocked material. It burdens communication / “A Dangerous Life
among adults. (sabiniNachura)” / “The Four Day
Revolution
The CDA is punitive, a criminal statute. The CDA is a content- (sabisa case)” would not be
based blanket restriction on speech, and as such, cannot be properly historically faithful
analyzed as a form of time, place and manner regulation. without including therein the
participation of Enrile in the EDSA
· The CDA was replaced with Child Online Protection Act, 1. The revolution.
scope had been limited to material displayed only on the world wide US vsBustos SC compared criticism of official
web. Chat and email were not included. The classification of content conduct to a
was limited as “harmful to minors” using the Miller V California “scalpel that relieves the abscesses
Test. So, it was upheld by the Supreme Court. of officialdom”
People vs Alarcon newspaper publications tending to
Notes: the Court’s Jurisprudence teaches that it is the publisher’s impede,
responsibility to abide by that community’s standards. obstruct, embarrass or influence
the courts in
The fact that distributors of allegedly obscene materials may be administering justice in a pending
subjected to varying community standards in the various federal suit or proceeding constitutes
judicial districts into which they transmit the materials does not criminal contempt which is
render a federal statute unconstitutional. summarily punishable by the
courts.
- Criticism of Official Conduct In re Jurado a publication that tends to impede,
Lagunzadvs Sotto Vda. de the Court granted the petition to embarrass or
Gonzales restrain the public exhibition of the obstruct the court and constitutes a
movie “Moises Padilla Story,” clear and
because it contained fictionalized present danger to the
embellishments. Being a public administration of justice is
figure does not destroy one's right not protected by the guarantee of
to privacy. press freedom
Ayer Productions vs Judge the tribunal upheld the primacy of and is punishable by contempt. It is
not necessary that publication
actually obstructs the U. FREEDOM OF RELIGION
administration of justice, it is Section 5, Art. III. No law shall be made respecting an
enough that it tends to do so. establishment of religion, or prohibiting the free exercise thereof.
In re Sotto a senator was punished for The free exercise and enjoyment of religious profession and
contempt for having worship, without discrimination or preference, shall forever be
attacked a decision of SC which he allowed. No religious test shall be required for
called the exercise of civil or political rights.
incompetent and narrow-minded,
and announcing
that he would file a bill for its Religion defined
reorganization
In re Tulfo Tulfo's “SangkatutaknaBobo” · “any specific system of belief, worship, conduct, etc., often
column was held involving a code of ethics and philosophy” (defined by Cruz)
contumacious. Freedom of the
press is subordinate to the · In Aglipayvs Ruiz religion is defined as “a profession of faith to an
decision, authority and integrity of active power that binds and elevates man to his Creator.
the judiciary and the proper
administration of justice. Two Guarantees Contained Section 5, Art. III of the Constitution
In re Laureta a lawyer was held in contempt and
suspended (1) Non-establishment clause
from the practice of law for wrting (2) Free exercise of religious profession and worship
individual letters to members of
the SC division that decided a case 1. Non-establishment Clause
against his client, arrogantly
questioning their decision · reinforces Sec. 6, Art. II on the separation of church and State
Zaldivarvs a member of the Bar who imputed
Sandiganbayan charges of · other provisions which support this: Sec 2(5), Art. IX-C [a religious
improper influence, corruption and sect or denomination cannot be registered as a political party], Sec
other misdeeds to members of the 5(2), Art. VI [no sectoral representative from the religious sector],
Supreme Court was suspended and Sec 29 (2), Art.VI [prohibition against the use of public money
from the practice of law as “neither or property for the benefit of any religion, or of any priest, minister
the right of free speech nor the or ecclsiastic], Sec. 28 (3), Art. VI [exemption from taxation of
right to engage in political properties actually, directly and exclusively used for religious
activities can be so construed or purposes, Sec 4(2), Art XIV [citizenship requirement of
extended as to permit any such ownership of educational institutions except those owned by
liberties to a member of the bar.” religious groups], Sec 29(2), Art VI [appropriation allowed where
the minister is employed in the armed forces, penal institution or
government-owned orphanage or leprosarium]
(2) Insulation of the political process from interfaith dissension –
Scope: The State voluntarism cannot be achieved unless the political process is
insulated from religion and unless religion is insulated politics.
(a) cannot set up a church;
(b) cannot pass laws which aid one religion, all religions or prefer Engel vs Vitale recitation by students in public
one over another; schools in New York of a prayer
(c) cannot influence a person to go to or remain away from church composed by the Board of
against his will; nor Regents was unconstitutional
(d) force him to profess a belief or disbelief in any religion. Everson vs Board of Education US Supreme Court sustained the
law providing free
Rationale: transportation for all
schoolchildren without
· to delineate boundaries between the two institutions; and discrimination, including those
· to avoid encroachment by one against the other. attending parochial schools
Board of Education vs Allen US Supreme Court sustained the
law requiring the
petitioner to lend textbooks free of
· A union of Church and State would either: charge to all students from grades
◦ tend to destroy government and to degrade religion; or 7-12, including those attending
◦ result in a conspiracy because of its composite strength private schools
In Everson and Allen, the government aid was given directly to the
· separation of church and state is not a wall of hostility student and parents, not to the church-related school
· The Government is neutral. It protects all, but prefers none and Adongvs Cheong Seng Gee in line with the constitutional
disparages none. principle of equal treatment of all
· Freedom of religion includes freedom from religion; the right to religions, the State recognizes the
worship includes right not to worship validity of marriages performed in
conformity with the rites of
Mohammedan religion
Rubivs Provincial Board the expression “non-Christian” in
Two values sought to be protected by the non-establishment “non-Christian tribes” was not
clause: meant to discriminate. It refers to
degree of civilization, not to the
(1) Voluntarism – the growth of a religious sect as a social force religious belief.
must come from the voluntary support of its members because of the Islamic Da'wah Council of the by arrogating to itself the task of
belief that both spiritual and secular society will benefit if religions Philippines vs Office of Exec. issuing halal
are allowed to compete on their own intrinsic merit without benefit Sec. certifications, the State has, in
of official patronage. effect, forced Muslims to accept
its own interpretation of the
Qur'an and Sunna on halal food.
(c) Justice Frankfurter: the constitutional provision on religious
freedom terminated disabilities, it did not create new privileges... its
essence is freedom from conformity to religious dogma, not freedom
from conformity to law because of religious dogma
· Intramural Religious Dispute – outside the jurisdiction of the
secular authorities German vsBarangan SC found that petitioners were
not sincere in
Gonzales vs Archbishop of where a civil right depends upon their profession of religious
Manila some matter pertaining to liberty and were
ecclesiastical affairs, the civil using it merely to express their
tribunal tries the civil right and opposition to
nothing more. the government
Fonacier v CA where the dispute involves the Ebralinagvs division SC reversed Gerona vs Sec. of
property rights of the religious Superintendent of Schools of Educ. , and
group, or the relations of the Cebu upheld the right of petitioners
members where the property to refute to
rights are involved, the civil salute the Philippine flag on
courts may assume jurisdiction. account of their
religious scruples. To compel
students to
2. Free Exercise Clause take part in a flag ceremony
when it is against
Two Aspects of Free Exercise Clause: their religious beliefs will
violate their religious
1. Freedom to Believe freedom.
People vsZosa invocation of religious scruples
(a) absolute in order to avoid military
(b) includes not to believe service was brushed aside
(c) “everyone has a right to his beliefs and he may not be called to bythe SC
account because he cannot prove what he believes” VictorianovsElizalde Rope SC upheld the validity of RA
Workers Union 3350, exempting
2. Freedom to Act According to One's Beliefs members of a religious sect
from being
(a) happens when the individual externalizes his beliefs in acts or compelled to join a labor union
omissions American Bible Society vs City of the constitutional guarantee of
Manila free exercise
(b) subject to regulation; can be enjoyed only with proper regard to carries with it the right to
rights of others disseminate information, and
any restraint of such right can
be justified only on the ground not included in solicitations for “charitable or public welfare
that there is a clear and present purposes.”
danger of an evil which the
State has the right to prevent; Religious Tests
Hence, City ordinance
imposing license fees to on · Purpose: to stop government's clandestine attempts to prevent a
sale is inapplicable to the person from exercising his civil of political rights because of his
society religious beliefs.
Tolentinovs Sec. of Finance the free exercise clause does
not prohibit imposing a · In Pamil v. Teleron, Sec. 2175 of the Revised Adminsitrative
generally applicable sales and Code is questioned whether or not it is consistent with the religious
use tax on the sale of religious clause of the Constitution. Said Code disqualifies an “ecclesiastic”
materials; the registration fee is from being elected or appointed to a municipal office. Seven Justices
not imposed for theexercise of voted to consider this a prohibited “religious test.” Five justices said
a privilege, but only for the it is not a religious test but a safeguard against the constant threat of
purposeof defraying part of the union of Church and State that has marked the Philippine history.
cost of registration (Hence, since the majority vote needed under the 1973 Constitution
to nullify a statute was not reached, thedisqualification remains
enforceable.)
· Compelling State Interest test [Estrada vsEscritor]

· the constitution's religion clause's prescribe not a strict People vsZosa invocation of religious scruples in
buabenevolent neutrality (which recognizes that government order to avoid military service
mustpursue its secular goals and interests, but at the same time, strive was brushed aside by the SC
to uphold religious liberty to the greatest extent possible within
flexible constitutional limits

· benevolent neutrality could allow for accomodation morality based V. RIGHT TO TRAVEL
on religion provided it does not offend the compelling state
interesttest. Section 6, Art. III. The liberty of abode and of changing the same
within the limits prescribed by law shall not be impaired except
· two steps (as regards the test): upon lawful order of the court. Neither shall the right to travel
▪ inquire whether respondent's right to religious freedomhas be impaired except in the interest of national security, public
been burdened; and safety, or public health, as may be provided by law.
▪ ascertain respondent's sincerity in her religious belief.
Liberty Guaranteed by Sec. 6 Art. III
· In CentenovsVillalon-Pornillos, the Court held that solicitiations 1. freedom to choose and change one's place of abode; and
for religious purposes requires not a prior permit from DSWD as it is 2. freedom to travel both within the country and outside
Limitations travel abroad was issued
· Liberty of Abode – “upon lawful order of the court” before the case could be heard.
· Right to Travel – “national security, public safety or public health Lorenzo vs Dir. ofHealth1927 Laws for the segregation of
as may be provided by law” lepers have been provided the
world over and is supported by
Cauncavs Salazar 82 Phil 851Whether a maid had the right high scientific authority. Such
to transfer to another residence segregation is premised on the
even if she had not paid yet the duty to protect public health.
amount advances by an Manotokvs CA 1986 Bail posted in a criminal case,
employment agency: is a valid restriction on
Yes. The fortunes of business theright to travel. By its
cannot be controlled by nature, it may serve as a
controlling a fundamental prohibition on an accused from
human freedom. leaving the jurisdiction of the
Human dignity and freedom Philippines where orders of
are essentially spiritual – Philippine courts would have
inseparable from the idea of no binding force.
eternal. Money, power, etc. Marcos vsManglapus1989 The liberty of abode and the
belong to the ephemeral and right to travel includes the
perishable. right to leave, reside and travel
Rubivs Provincial Board of The respondents were justified within one’s country but it
Mindoro 1919 in requiring the members of does not include the right to
certain non-Christian tribes to return to one’s country.
reside in a reservation, for NOTE: Court warned that this
their better education, case should not create a
advancement and protection. precedent because Marcos was
The measure was a legitimate a class in himself.
exercise of police power. Philippine Association of Service Right to travel may be
Villavicencio vsLukban1919 Prostitutes, despite being in a Exporters vsDrilon impaired in the interest of
sense lepers, are not 1988 national security, public health
chattels but Philippine citizens, or public order, as may be
protected by the same provided by law.
constitutional guarantee of An order temporarily
freedom of abode. They may suspending the deployment of
not be compelled to change overseas workers is
their domicile in the absence constitutional for having been
of a law allowing such. issued in the interest of the
SalongavsHermoso97 SCRA 121 the case became moot and safety of OFWs, as provided
academic when the permit to by the Labor Code.
GENERAL PRINCIPLES

Nature and Scope

Public International Law – It is the body of rules and principles


that are recognized as legally binding and which govern the relations
of states and other entities invested with international legal
personality. Formerly known as “law ofnations” coined by Jeremy
Bentham in 1789.

Three Major Parts of Public International Law


1. Laws of Peace – normal relations between states in the absence of
war.
2. Laws of War – relations between hostile or belligerent states
during wartime.
3. Laws of Neutrality – relations between a non-participant state
and a participant state during wartime. This also refers to the
relations among non-participating states.

Sources of Public International Law


1. International conventions
2. International custom
3. The general principles of law recognized by civilized nations. (e.g.
prescription, pactasuntservanda, and estoppel).

Distinction of Public International Law with Municipal Law


Municipal Law Public International Law
1. Issued by a political superior 1. Not imposed upon but simply
by PORFERIO JR. and MELFA SALIDAGA for observance by those under its adopted by states as a common
authority; rule of action among themselves;
2. Consists mainly of enactments 2. derived not from any
from the law-making authority of particular legislation but from
CODES AND NOTES ON PUBLIC INTERNATIONAL LAW each state; such sources as international
NOTES ON PUBLIC INTERNATIONAL LAW customs, international
conventions and the general
principles of law;
3. Regulates the relations of 3. Applies to the relations inter
individuals among themselves or se of states and other
CHAPTER 1 with their own states; international persons;
4. Violations are redressed 4. Questions are resolved Constitution v. Treaty
through local administrative and through state-to-state
judicial processes; and, transactions ranging from Generally, the treaty is rejected in the local forum but is upheld by
peaceful methods like international tribunals as ademandable obligation of the signatories
negotiation and arbitration to the under the principle of pactasuntservanda.
hostile arbitrament of force like
reprisals and even war; and, PactaSuntServanda– international agreements must be performed
5.breaches generally entail only 5. responsibility of infractions is in Good Faith. A treaty engagement is not a mere moral obligation
individual responsibility. usually collective in the sense but creates a legally binding obligation on the parties. A state which
that it attaches directly to the has contracted a valid international obligation is bound to make in its
state and not to its nationals. legislation such modifications as may be necessary to ensure the
fulfillment of the obligations undertaken.
Public International Law in Relation to Municipal Law
The Philippine Constitution however contains provisions
In the paquete Habana, Justice Gray said: “the law of nations, empowering the judiciary to annul treaties thereby establishing the
although not specially adopted by the Constitution or any municipal primacy of the local law over the international agreement.
act, is essentially a part of the law of the land.”
Art. X, Sec. 2(2) provides that “all cases involving the
Doctrine of Incorporation – the rules of international law form part constitutionality of any treaty, executive or law shall be heard and
of the law of the land and no further legislative action is needed to decided by the Supreme Court en banc, and no treaty, executive
make such rules applicable in the domestic sphere. (Sec. of Justice agreement or law may be declared unconstitutional without the
v. Lantion GRN 139465, Jan. 18,2000) concurrence of ten justices.”

This doctrine is followed in the Philippines as embodied in Art. II, The Constitution authorizes the nullification of a treaty not only
Sec. 2 of the 1987 Constitution which provides that: “The when it conflicts with the Constitution but also when it runs counter
Philippines…adopts the generally accepted principles of to an act of Congress. (Gonzales v. Hechanova).
international law as part of the law of the land…” However, no
primacy is implied. Basis of Public International Law

It should be presumed that municipal law is always enacted by each Three theories on this matter:
state with due regard for and never in defiance of the generally
accepted principles of international law. (Co Kim Chan v. Valdez 1. The Naturalist – under this theory, there is a natural and universal
Tan Keh). principle of right and wrong, independent of any mutual intercource
or compact, which is supposed to be discovered and recognized by
It is a settled principle of international law that a sovereign cannot be every individual through the use of his reason and his conscience.
permitted toset up his own municipal law as a bar to a claim by
foreign sovereign for a wrong done to the latter's subject. (US v 2. The Positivist – under this theory, the binding force of
Guatemala). international law is derived from the agreement of sovereign states to
be bound by it. It is not a law of subordination but of coordination.
1. To establish peace and order in the community of nations and to
3. The Eclectics or Groatians– this theory offers both the law of prevent the employment of force, including war, in all international
nature and the consent of states as the basis of international law. It relations;
contends that thesystem of international law is based on the “dictate
of right reason” as well as “the practice of states.” 2. To promote world friendship by levelling the barriers, as of color
or creed;
Sanctions of Public International Law
3. To encourage and ensure greater international cooperation in the
Sanctions – the compulsive force of reciprocal advantage and fear of solution of certain common problems of a political, economic,
retaliation. cultural or humanitarian character; and,

1. The inherent reasonableness of international law that its 4. To provide for the orderly management of the relations of states
observance will redound to the welfare of the whole society of on the basis of the substantive rules they have agreed to observe as
nations; members of the international community.

2. The normal habits of obedience ingrained in the nature of man as a Distinctions with Other Concepts
social being;
International morality or ethics – embodies those principles which
3. To project an agreeable public image in order to maintain the govern the relations of states from the higher standpoint of
goodwill and favorable regard of the rest of the family of nations; conscience, morality, justice andhumanity.

4. The constant and reasonable fear that violations of international International diplomacy – relates to the objects of national or
law might visit upon the culprit the retaliation of other states; and, international policy and the conduct of foreign affairs or international
relations.
5. The machinery of the United Nations which proves to be an International administrative law – that body of laws and
effective deterrent to international disputes caused by disregard of regulations created by the action of international conferences or
the law of nations. commissions which regulate the relations and activities of national
and international agencies with respect to those material and
Enforcement of Public International Law intellectual interests which have received an authoritative universal
recognition.
States are able to enforce international law among each other through
international organizations or regional groups such as the United CHAPTER 2
Nations and the Organization of American States. These bodies may THE INTERNATIONAL COMMUNITY
adopt measures as may be necessary to compel compliance with
international obligations or vindicate the wrong committed. International Community – the body of juridical entities which are
governed by the law of nations.
Functions of Public International Law
Composition of International community:
1. State
2. United Nations The size is irrelevant. (San Marino v. China). But, practically, must
3. the Vatican City not be too big as to be difficult to administer and defend; but must
4. Colonies and dependencies not be too small as tounable to provide for people’s needs.
5. Mandates and trust territories C. Government – the agency or instrumentality through which the
6. International administrative bodies will of the State is formulated, expressed and realized.
7. Belligerent communities
8. Individuals D. Sovereignty – the power to direct its own external affairs without
interference or dictation from other states.
1. States
State – a group of people living together in a definite territory under Classification of States
an independent government organized for political ends and capable 1. Independent states – having full international personality.
of entering into international relations. Some writers no loner • Sovereignty – connotes freedom in the direction by the
recognized the distinction between state and nation, pointing out state in its owninternal and external affairs.
that these two terms are now used in an identical sense. Nevertheless, • However international law is concerned only with this
a respectable number of jurists still hold that the state is a freedom in so far asit relates to external affairs; hence, a state
legalconcept, the nation is only a racial or ethnic concept. which is not subject to dictationfrom others in this respect is
known as an independent state.
Elements of A State
1. People 2. Dependent states – exemplified by the suzerainty and the
2. Territory protectorate and are so called because they do not have full control
3. Government of their external relations.
4. Sovereignty
• Dependent states fall into two general categories: the protectorate
A. People – the inhabitants of the State. and the suzerainty. However, there is no unanimity as to their basic
distinctions in terms of measure of control over its external affairs.
People must be numerous enough to be self-sufficing and to defend
themselves, and small enough to be easily administered and 3. Neutralized states – an independent state, whether it be simple or
sustained. They are aggregate of individuals of both sexes who live composite, may be neutralized through agreement with other states
together as a community despite racial or cultural differences. by virtue of which the latter will guarantee its integrity and
independence provided it refrains from taking any act that will
• Groups of people which cannot comprise a State: involve it in war or other hostile activity except for defensive
◦ Amazons – not of both sexes; cannot perpetuate themselves purposes.
◦ Pirates – considered as outside the pale of law, treated as an
enemy of all mankind; “hostishumani generis” Classification or Types of An Independent State
1. Simple state – one which is placed under a single and centralized
B. Territory – the fixed portion of the surface of the earth inhabited government exercising power over both its internal and external
by the people of the State. affairs (e.g. Philippines and Holland).
2. Composite state – one which consists two or more states, each
with its own separate government but bound under central authority
exercising, to a greater or less degree, control over their external • It enjoys certain privileges and immunities, such as non-
relations. suability,inviolability of its premises and archives, and exemption
from taxation.
Kinds or Categories of Composite States:
a) Real Union – created when two or more states are merged under a • It can assert a diplomatic claim on behalf of its officials, and
unified authority so that they form a single international person treatiesmay also be concluded by it through the General Assembly,
through which they act as one entity (e.g. Norway and Sweden from the SecurityCouncil, and the Economic and Social Council.
18154 to 1905).
• Trust territories are supposed to be under its residual
b) Federal Union (or a federation) – is a combination of two or more sovereignty.
sovereign states which upon merger cease to be states, resulting in
the creation of a new state with full international personality to 3. The Vatican City
represent them in their external relations as well as a certain degree
of power over the domestic affairs and their inhabitants (e.g. German In 1928, Italy and the Vatican concluded the Lateran Treaty “for the
Empire under the Constitution of 1871). purpose ofassuring to the Holy See absolute and visible
independence and of guaranteeingto it absolute and indisputable
c) Confederation – an organization of states which retain their sovereignty in the field of international relations.”
internal sovereignty and, to some degree, their external sovereignty,
while delegating to the collective body power to represent them as a 4. Colonies and Dependencies
whole for certain limited and specified purposes (e.g. German states
in 1866 until they eventually developed into a more closely-knit From the viewpoint of international law, a colony or a dependency is
federation). part andparcel of the parent state, through which all its external
relations are transactedwith other states.
d) Personal Union – comes into being when two or more
independent states are brought together under the rule of the same Nevertheless, such entities have been allowed on occasion to
monarch, who nevertheless does not constitute one international participate intheir own right in international undertakings and
person for the purpose of representing any or all of them. Strictly granted practically the statusof a sovereign state. It is when acting in
speaking therefore, the personal union is not a composite state this capacity that colonies anddependencies are considered
because no new international person is created to represent it in international persons.
international relations (e.g. Belgium and the Former Congo Free
State from 1885 to 1905). 5. Mandates and Trust Territories

2. The United Nations The system of mandates was established after the first World War in
order toavoid outright annexation of the underdeveloped territories
Although the United Nations is not a state or a super-state but a mere taken from thedefeated powers and to place their administration
organization of states, it is regarded as an international person for under some form ofinternational supervision.
certain
purposes. Three Kinds of Trust Territories:
1. Those held under mandate under the League of Nations;
2. Those territories detached from the defeated states after World Of late, however, the view has grown among many writers that the
War II;and, individual isnot merely an object but a subject of international law.
3. Those voluntarily placed under the system of the states responsible One argument is that theindividual is the basic unit of society,
fortheir administration. national and international, and musttherefore ultimately governed by
the laws of this society.

These territories enjoy certain rights directly available to them under


the United Nations Charter that vest them with a degree of CHAPTER 3
international personality. Theyare not however sovereign. THE UNITED NATIONS

6. Belligerent Communities The United Nations emerged out of the travail of World war II as
symbol of man'sundismayed determination to establish for all nations
When a portion of the population rises up in arms against the a rule of law that wouldforever banish the terrible holocaust of war
legitimategovernment of the state, and such conflict widens and in the so9lution of internationaldisputes.
aggravates, it maybecome necessary to accord the rebels recognition
of belligerency. The first formal step toward the creation of the United Nations was
the MoscowDeclaration, signed by the representatives of China, the
For purposes of the conflict, and pending determination of whether Soviet Union, the UnitedKingdom, and the United States.
or not thebelligerent community should be fully recognized as a
state, it is treated as aninternational person and becomes directly The U.N. Charter
subject to the laws of war andneutrality.
The United Nations Charter – a lengthy document consisting of
7. International Administrative Bodies 111 articlesbesides the preamble and the concluding provisions. It
also includes the Statuteof the International Court of Justice which is
Certain administrative bodies created by agreement among states annexed to and made an integralpart of it.
may be vestedwith international personality (e.g. International Labor
Organization, WorldHealth Organization). In one sense, the Charter maybe considered a treaty because it
derives itsbinding force from the agreement of the parties to it. In
Two Requisites for International Administrative Bodies to be another sense, it maybe regarded as a constitution in so far as it
Vested withInternational Personality: provides for the organization andoperations of the different organs
1. Their purposes are mainly non-political; and that of the United Nations and for the adoption ofany change in its
2. They are autonomous, i.e. not subject to the control of any state. provisions through formal process of amendment.

8. Individuals The Charter is intended to apply not only to the members of the
Organization butalso to non-member states so far as may be
Traditional concept regards the individual only as an object of necessary for the maintenance ofinternational peace and security.
international lawwho can act only through the instrumentality of his
own state in matters involvingother states.
Amendments to the Charter shall come into force by a vote of two- 5. All Members shall give the United Nations every assistancein
thirds of themembers of the General Assembly and ratified in anyaction it takes in accordance with the present Charter;
accordance with theirrespective constitutional processes by two-
thirds of the Members of the UnitedNations. 6. The Organization shall ensure that states which are not Members
of theUnited Nations act in accordance with these Principles;
The Preamble to the Charter and,

The preamble introduces the Charter and sets the common intentions 7. Nothing contained in the present Charter shall authorize the
that movedthe original members to unite their will and efforts to UnitedNations to intervene in matters which are essentially
achieve their commonpurposes. within thedomestic jurisdiction of any state.
Membership
Purposes
Two Kinds of members in the United Nations
The purposes of the Charter are expressed in Article 1 as follows:
1. Original – those which, having participated in the United
1. Maintain international peace and security; NationsConference on International Organization at San Francisco or
2. Develop friendly relations among nations; havingpreviously signed the Declaration by the United Nations of
3. Achieve international cooperation in solving international January 1,1942, signed and ratified the Charter of the United
problems; Nations.
4. Be a center for harmonizing the actions of nations in the • Interestingly, the Philippines was included as original
attainment ofthese common ends. member althoughit was not yet a state at the time.

Principles 2. Elective
In addition to the original members, other members may be admitted
The Seven Cardinal Principles ( as enumerated in Article 2): to the United Nations by decision of the General Assembly upon the
favorable recommendation of the Security Council.
1. The Organization is based on the principle of the sovereign
equality of allits members; Membership Qualifications to the United Nations

2. All Members shall fulfill in good faith the obligations assumed 1. It must be a state;
by themin accordance with the present Charter; 2. It must be peace-loving;
3. It must accept the obligations of the Charter;
3. All Members shall settle their international disputes by 4. It must be able to carry out these obligations; and,
peacefulmeans; 5. It must be willing to carry out these obligations;

4. All Members shall refrain in their international relations from the Suspension of Members
threat oruse of force against the territorial integrity or political
independenceof any state; As in the case of admission, suspension is effectedby two-thirds of
those present and voting in General Assembly upon the favorable
recommendation of at least nine members of the Security Council, It consists of all the members of the Organization, each of which is
including all its permanent members. entitled to send not more than five representatives and five alternates
as well as such technical staff as it may need.
The suspension may be lifted alone by the Security Council, also by
a qualified majority vote. Nationals of the suspended member may, • Functions of the General Assembly
however, continue serving in the Secretariat and the International ◦ Deliberative - such as initiating studies and
Court of Justice as they are regarded as international officials or civil makingrecommendations;
servants acting for the Organization itself. ◦ Supervisory – such as receiving and considering annual
and specialreports from the other
Since suspension affects only its rights and privileges, the member is organs;
still subject to the discharge of its obligations under the Charter. ◦ Financial – such as consideration and approval of budget
of theOrganization;
Expulsion of Members ◦ Elective – such as the election of non-permanent members
of theSecurity Council;
A member which has persistently violated the principles contained in ◦ Constituent – such as the admission of members and the
the Charter may be expelled by two-0thirds of those present and amendmentof the Charter.
voting in the General Assembly upon the recommendation of the
Security Council by a qualified majority vote. B. The Security Council

Withdrawal of Members The key organ of the United Nations of international peace and
security is the Security Council.
No provision on withdrawal of membership was included in the It consists of five permanent members and ten elective members. The
Charter because elective members are elected for two-year terms.
of the fear that it might encourage successive withdrawals that would
weaken the Organization. C. The Economic and Social Council

The responsibility for the promotion of international economic and


socialcooperation is vested in the General Assembly, and under its
Organs of the United Nations authority, theEconomic and Social Council. Specifically these organs
should exert effortstoward:
1. The General Assembly • higher standards of living, full employment, and conditions
2. The Security Council of economicand social progress and development;
3. The Economic and Social Council • solutions of international economic, social, health and
4. The Trusteeship Council related problems, and international, cultural and educational
5. The International Court of Justice cooperation; and,
6. The Secretariat • universal respect for human rights and fundamental
freedoms for allwithout distinction as to race, sex, language
A. The General Assembly or religion.
D. The Trusteeship Council The Secretary-General is the highest representative of the United
Nations and is authorized to act in its behalf. When acting in this
It is the organ charged with the duty of assisting the Security Council capacity, he is entitled to full diplomatic immunities and privileges
and the General Assembly in the administration of the international which only the Security Council may waive.
trusteeship system.
The Secretary-General also acts as secretary in all meetings of the
General Assembly, the Security Council, the Economic and Social
Council and the Trusteeship Council and performs such other
E. The International Court of Justice functions as may be assigned to him by these organs.

It functions in accordance with the Statute. All members of the In addition, he prepares the budget of the United Nations for
Organization are ipso facto parties to the Statute. A non-member submission to the General Assembly, provides technical facilities to
may become a party on conditions to be determined in each case by the different organs of the Organization, and in general coordinates
the General Assembly upon the recommendation of the security its vast administrative machinery.
Council.

The principal functions of the Court are:


• to decide contentious cases; and,
• render advisory opinions.

The jurisdiction of the Court is based on the consent of the parties as


manifested under the “optional jurisdiction clause” in Article 36 of
the Statute. Advisory opinions may be given by the Court upon CHAPTER 4
request of the General THE CONCEPT OF THE STATE

Assembly or the Security Council, as well as other organs of the As the basic unit of the international community, the state is the
United Nations, when authorized by the General Assembly, on legal principal subject of international law.
questions arising within the scope of their activities.
Creation of the State
F. The Secretariat Four Essential Elements of the State
1. People
It is the chief administrative organ of the United Nations which is 2. Territory
headed by the Secretary-General. 3. Government
4. Sovereignty
The Secretary-General is chosen by the General Assembly upon the Methods by which Status of A State is Acquired
recommendation of the Security Council. His term is fixed at five 1. Revolution
years by resolution of the general Assembly, and he may be re- 2. Unification
elected. 3. Secession
4. Assertion of independence
5. AgreementsAttainment of civilization • Treaties of a political and even commercial nature are also
discontinued, but the successor state is bound by treaties dealing with
The Principle of State Continuity local rights and duties.

From the moment of its creation, the state cointinues as a juristic • All rights of the predecessor state are inherited by the successor
being notwithstanding changes in its circumstances, provided only state but this is not so where the liabilities are concerned.
that they do not result in loss of any of its essential elements.

Extinction of the State


Succession of Governments
Nevertheless, it is error to suppose that a state is immortal. There are
instances when a radical impairment or actual loss of one or more of One government replaces another either peacefully or by violent
the essential elements of the state will result in its extinction. methods. In both instances, the integrity of the state is not affected;
the state continues as thesame international person except only
Succession of States that its lawful representative is changed.

State succession takes place when one state assumes the rights and The rule is that where the new government was organized by virtue
some of of a constitutional reform, the obligations of the replaced
the obligations of another because of certain changes in the condition government are also completely assumed by the former.
of the latter.
Conversely, where the new government was established through
Universal Succession – when a state is annexed to another state or is violence, it may lawfully reject the purely personal or political
totally dismembered or merges with another state to form a new obligations of the predecessor government but not those contracted
state. by it in the ordinary course of official business.

Partial Succession – when a portion of the territory of a state CHAPTER 5


secedes or is ceded to another or when an independent state becomes RECOGNITION
a protectorate or a suzerainty or when a dependent state acquires full
sovereignty. Even if an entity has already acquired the elements of international
personality, it is not for this reason alone automatically entitled to
Consequences of State Succession membership in the family of nations. Its admission thereto is
dependent on:
• The allegiance of the inhabitants of the predecessor state in the • as reflective of the majority theory, the acknowledgment of
territory affected is transferred to the successor state. its status bythose already within the fold and their
willingness to enter into relations with it as a subject of
• The political laws of the former sovereign are automatically international law (declaratory);
abrogated and may be restored only by a positive act on the part of
the new sovereign. • as reflective of the minority theory, the acknowledgment is
mandatoryand legal and may be demanded as a matter of
right by any entity that canestablish its possession of the four The recognition of a new state is the free act by which one or more
essential elements of a state (constitutive). states acknowledge the existence on a definite territory of a human
society politically organized, independent of any other existing state,
Objects of Recognition and capable of observing the obligations of international law, and by
which they manifest therefore their intention to consider it a member
Recognition may be extended to: of the international community.

a. State, which is generally held to be irrevocable and imports the Recognition of Governments
recognition of its government;
The recognition of the new government of a state which has been
b. Government, which may be withdrawn and does not necessarily already recognized is the free act by which one or several states
signify the existence of a state as the government may be that of a acknowledge that a person or a group of persons are capable of
mere colony; and, binding the state which they claim to represent and witness their
intention to enter into relations with them.
c. Belligerency, which does not produce the same effects as the
recognition of states and governments because the rebels are Two Kinds of Governments
accorded international personality only in connection with the
hostilities they are waging. 1. De Jure
2. De facto
Kinds of Recognition
Three Kinds of De Facto Government
1. Express recognition – may be verbal or in writing;
2. Implied recognition – when the recognizing state enters into 1. That which is established by the inhabitants who rise in revolt
official intercourse with the new member by exchanging diplomatic against and depose the legitimate regime;
representatives with it, etc.
2. That which is established in the course of war by the invading
forces of one belligerent in the territory of other belligerent, the
government of which is also displaced; and,
The Act of Recognition is Indicative of the Following Intentions
3. That which is established by the inhabitants of a state who secede
1. To treat with the new state as such; therefrom without overthrowing its government.
2. To accept the new government as having authority to represent the
state; Tobar or Wilson Principle – recognition shall not be extended to
3. To recognize in the case of insurgents that they are entitled to any government established by revolution, civil war, coup d'etat or
exercise belligerent rights. other forms of internal violence until the freely elected
representatives of the people have organized a constitutional
Recognition of State government.
In any event, the practice of most states now is to extend recognition
to a new government only if it is shown that it has control of the Recognition of Belligerency
administrative machinery of the state with popular acquiescence and
that it is willing to comply with its international obligations. A belligerency exists when the inhabitants of a state rise up in arms
for the purpose of overthrowing the legitimate government.

Distinctions between the two kinds of recognition Conditions for A Belligerent Community to Be Recognized

De Jure De Facto 1. There must be an organized civil government directing the rebel
• Relatively permanent; • Provisional; forces;
• Vests title in the government • Does not;
toits properties abroad; 2. The rebels must occupy a substantial portion of the territory of the
• Brings about full diplomatic • Limited to certain juridical state;
relations. relations.
3. The conflict between the legitimate government and the rebels
must be serious, making the outcome uncertain; and,
Effects of Recognition of State and Governments
4. The rebels must be willing and able to observe the laws of war.
1. Full diplomatic relations are established except where the
government recognized is de facto;
Consequences of Recognition of Belligerency
2. The recognized state or government acquired right to sue in the
courts of the recognizing state. Upon recognition by the parents state, the belligerent community is
It is error, however, to suppose that non-suability of the foreign state considered a separate state for purposes of the conflict it is waging
or government is also an effect of recognition, as this is an attribute it against the legitimate government. Their relations with each other
can claim whether or not it has been recognized by the local state. will, thenceforth and for the durationof the hostilities, be governed
The applicable rule is the doctrine of state immunity. It has been held by the laws of war, and their relations with other states will be
that to cite “a foreign sovereign subject to the laws of neutrality.
in the municipal courts of another state” would be “an insult which
he is entitled to resent” and would certainly “vex the peace of
nations.” CHAPTER 6
THE RIGHT OF EXISTENCE AND SELF-DEFENSE
3. The recognized state or government has a right to the possession
of the properties of its predecessor in the territory of the recognizing Once a state comes into being, it is invested with certain rights
state. described as fundamental.

4. All acts of the recognized state or government are validated Fundamental Rights of A State
retroactively, preventing the recognizing state from passing upon
their legality in its own courts. 1. The right to national existence and national defense;
2. The right of sovereignty and independence; The Balance of Power
3. The right of equality;
4. The right of property and jurisdiction; and, One reason for the organization of regional arrangements is to
5. The right of legation or diplomatic intercourse. provide for the balance of power, which Vattel described as “an
arrangement of affairs so that no state shall be in position to have
The most important of these rights is the right of existence and self- absolute mastery and dominion over others.”
defense, because all other rights are supposed to flow or be derived
from it. By virtue of this right, the state may take measures, The maintenance of this balance of power has in a very real way
including the use of force, as may be necessary to counteract any contributed to international peace although, being an “armed peace,”
danger to its existence. it is far from the ideal sought in the articles of faith of the United
Nations.
Requisites of Right
Aggression Defined
In Art. 51 of the Charter of the United Nations, it is provided that –
Definition of agression as adopted by the U.N. General Assembly on
“Nothing in the present Charter shall impair the inherent December 14, 1974:
right of individual or collective self-defense if any armed
attack occurs against a member of the United Nations, until Article 1
the Security Council has taken the measures necessary for
the maintenance of international peace and security. xxx” Aggression – is the use of armed force by a State against the
sovereignty, territorial integrity or political independence of another
The presence of an “armed attack” to justify the exercise of the right state, or in any other manner inconsistent with the Charter of the
of the self-defense under this article suggests that forcible measures United Nations.
may be taken by a state only in the face of “necessity of self-defense,
instant, overwhelming and leaving no choice of means and no Article 3
moment for deliberation.”
Any of the following acts qualify as an act of agression
Regional Arrangements
a. The invasion or attack by the armed forces of a state of the
Collective self-defense is recognized not only in Article 51 of the territory of another state;
Charter of the United Nations but also in Art. VII on Regional
Arrangements “... provided that such arrangements or agencies and b. bombardment by the armed forces of a state against the territory of
their activities are consistent with the Purposes and Principles of the another state;
United Nations (Art. 52, Sec. 1 of the Charter of the United
Nations).” c. The blackade of the ports or coasts of a state by the armed forces
of another state;

d. An attack by the armed forces on land, sea or air forces, or marine


or air fleets of another state;
e. The use of armed forces of one state in the territory of another Nature of Independence
state with the agreement of the receiving state, in contravention of
the conditions provided for in the agreement or any extension of their Independence cannot be regarded as importing absolute freedom. It
presence in such territory beyond the termination of the agreement; only means freedom from control by any other state or group of
states and not freedom from restrictions that are binding on all states
f. The action of the state in allowing its territory, which it has placed forming the family of nations.
at the disposal of another state, to be used by that other state
perpetrating an act of aggression against a third state; and, Thus, a state may not employ force or even the threat of force in its
relations with other states because this is prohibited by Article 2 of
g. The sending by or on behalf of a state of armed force against the Charter of the United Nations. It may adhere to the maxim of
another state of such gravity as to amount to the acts listed above, or PactaSuntServanda. The principle ofmare liberumwill prevent it
its substantial involvement therein. from arrogating to itself the exclusive use of the open seas to the
detriment of other states. Under the laws of neutrality, it must
acquisce in the exercise of certain belligerent rights even if this
might impair its own interests or those of its nationals.

PactaSuntServanda– the observance of a state to treaties with other


state in good faith.

CHAPTER 7 Intervention
THE RIGHT OF INDEPENDENCE
In addition, the state must abstain from intervention. Even as it
Sovereignty is the supreme, uncontrollable power inherent in a state expects its independence to be respected by other states, so too must
by which that state is governed. It is “the supreme power of the State it be prepared to respect their own independence.
to command and enforce obedience, the power to which, legally
speaking, all interests are practically subject and all wills Intervention – an act by which a state interferes with the domestic
subordinate. or foreign affairs of another state or states through the employment
of force or the threat of force.
Two Aspects of Sovereignty
The use of force is only allowed under the Charter of the United
1. Internal Sovereignty – refers to the power of the state to direct its Nations when it is exercised as an act of self-defense, or when it is
domestic affairs, as when it establishes its government, enacts laws decreed by the Security Council as a preventive or enforcement
for observance within its territory. action for the maintenance of international peace and security.

2. External Sovereignty – signifies the freedom of the state to The Drago Doctrine
control its own foreign affairs, as when it concludes treaties, makes
war or peace, and maintains diplomatic and commercial relations. It This doctrine was embodied in the Hague Convention of 1907
is often referred as independence. through the provision that “ the Contracting Powers agree not to have
recourse to armed force for the recovery of contract debts claimed Under the rule of par in parem, non habet imperium, even the
from the government by the government of another country as being strongest statecannot assume jurisidiction over another state, no
due to its nationals. matter how weak.
This rule was, however, dissipated by the Porter Resolution.
Porter Resolution – intervention was permitted if the debtor state Legal Equality v. Factual Inequality
refused anoffer to arbitrate, prevented agreement on the compromis,
or having agreed thereto, refused to abide by the award of the But even from the viewpoint of strictly legal rules, it is apparent that
arbitrator. absoluteequality among states is still a distant and well high
impossible aspiration. Underthe Charter of the United Nations, for
example, non-procedural questions aredecided by the Security
CHAPTER 8 Council only with the concurrence of the Big Five, any of which may
THE RIGHT OF EQUALITY defeat a proposal through the exercise of the veto. This is true
alsowith respect to the ratification of any proposal to amend the
In Article 2 of the Charter of the United Nations, it is announced that Charter.
“the Organization is based on the principle of the sovereign equality
of all its Members.” But this rule of equality itself sometime poses serious questions of
inequality.This is so because it does not take into account the
In the provision of the Montevideo Convention of 1933, “states are realities of international life,including the greater stakes of the more
juridically equal, enjoy the same rights, and have equal capacity in populous states in the decision ofquestions involving the entire
their exercise.” community of nations. Such decisions may affect
the interests, not of individual states as such, but of the whole of
Essence of Equality humanity itselfwithout distinctions as to color, nationality or creed.

In international law, equality among states does not signify parity in


physical power, political influence or economic status or prestige.

Principle of Equality – all the rights of state, regardless of their CHAPTER 9


number, must be obsreved or respected by the international TERRITORY
community in the same manner as rights of other states are observed
and respected. Territory – the fixed portion of the surface of the earth inhabited by
the people ofthe state.
Accordingly, all members of the United Nations have each one vote
in the General Assembly, all votes having equal weight, and are As previously observed, the territory must be big enough to provide
generally eligible for positions in the various organs of the United for the needsof the population but should not be so extensive as to be
Nations. Every state has the right tothe protection of its nationals, to difficult to administer ordefend from external aggression.
make use of the open seas, or to acquire or
dispose territory. Acquisition and Loss of Territory

Mode in the Acquisition of Territory


• “Discovery alone, without any subsequent act, cannot at the present
1. by discovery and occupation time suffice to prove sovereignty over the Island of Palmas....”
2. by prescription (Island of Palmas Case)
3. by cession
4. by subjugation and • “Besides the animus occupandi, the actual and not the nominal
5. by accretion taking of possession is necessary condition of occupation. This
taking ofpossession consists... steps to exercise exclusive authority
Mode of Losing Territory there.”(Clipperton Island Case)

1. by abandonment or dereliction Dereliction


2. by cession
3. by subjugation Requisites of Valid Dereliction
4. by revolution and
5. by natural causes 1. act of withdrawal, and
2. the intention to abandon
Discovery and Occupation
Hence, where the forces of the state are driven away from the
Discovery and occupation is an original mode of acquisitionby which territory by the natives, title is not thereby necessarily forfeited, as it
territory notbelonging to any state, or terra nullius, is placed under may be that they intend to return with the necessary reinforcements
the sovereignty of thediscovering state. The territory need not be to suppress the resistance. If such intention is not present, the
uninhabited provided it can beestablished that the natives are not territory itself becomes res nullius or terranullius, becoming open
sufficiently civilized and can be considered aspossessing not rights once again to the territorial ambitions of other states.
of sovereignty but only rights of habitation.Like the open seas, outer
space is res communist and not susceptible todiscovery and Prescription
occupation.
There is as yet no rule in international law fixing the period of
Requisites of Valid Discovery and Occupation possession necessary to transfer title to the territory from the former
to the subsequent sovereign.
1. Possession, and
2. Administration Cession

Mere possession will not suffice, as only an inchoate title of Cession – is a method by which territory is transferred by one state
discovery is acquiredby the claimant state pending compliance with to another by voluntary agreement between them. Cession may be in
the second requirement, which isthe administration of the territory. the form of sale, donation, barter or exchange, and even by
Otherwise, the title will lapse and the territorywill become res nullius testamentary disposition.
again.
Subjugation
Subjugation – is when, having been previously conquered or • national – situated completely in the territory of one state,
occupied in the course of war by the enemy, it is formally annexed to • multi-national – that flow through the territories of several states,
it at the end of the war. • international – that is navigable from the open sea and is open to
the use of vessels from all states,and
Requisites of Valid Subjugation • boundary – divides the territories of riparian states.

1. conquest Thalweg Doctrine – the boundary line is laid on the river, that is, on
2. annexation the center, not of the river itself, but of its main channel.

Accretion Where the boundary river changes its course by a gradual and normal
process, such as accretion or erosion, the dividing line follows the
Accretion – is a mode of acquiring territory based on the principle of new course; but if the deviation is violent is abrupt, as by avulsion,
accession cedatprincipali. It is accomplished through both or natural the boundary line will continue to be laid on the old bed of the river,
or artificial processes. in the absence of contrary agreement.

Components of Territory As for the dividing line on a bridge across a boundary river, the same
is laid on the middle of the bridge regardless of the location of the
Territory of the State Consists of the Following: channel underneath, unless otherwise provided by the riparian state.
1. Terrestrial Domain
2. Maritime and Fluvial Domain 2. Bays
3. Aerial Domain
A. The Terrestrial Domain Bay – is a well-marked indentation whose penetration is in such
proportion to the width of its mouth as to contain land-locked waters
Terrestrial Domain – refers to the land mass which may integrate, and constitute more than a curvature of the coasts.
or dismembered, or partly bounded by water, or consists of one
whole island. It may also be composed of several islands, like the An indentation shall not, however, be regarded as a bay unless its
Philippines and Indonesia, which are known as mid-ocean area is as large as or larger than that of a semi-circle whose diameter
archipelagoes, as distinguished from the coastal archipelagoes like is a line drawn across the mouth of that indentation.
Greece.
The above rules do not apply to the so-called historic bays.
B. The Maritime and Fluvial Domain
3. The Territorial Sea
Maritime and Fluvial Domain – consists off the bodies of water
within the land mass and the waters adjacent to the coasts of the state Territorial Sea – described as the belt of waters adjacent to the
up to a specified limit. coasts of the state, excluding the internal waters in bays and gulfs,
over which the state claims sovereignty and jurisdiction.
1. Rivers
Traditionally, the breadth of the territorial sea is reckoned at three
Rivers may be classified into: nautical miles, or a marine league, from the low-water mark.
However, many states have since extended their territorial seas, so territories belonging tothe Philippines by historic right or legal
that no uniform rule can be regarded as established at present in this title...”
regard.
Our position is that all these islands should be considered one
4. The UN Conferences of the Law of the Sea integrated wholeinstead of being fragmented into separate units each
with its own territorial sea.Otherwise, the water outside each of these
Three international conferences had been called so far to formulate a territorial seas will be regarded ashigh seas and thus be open to all
new law of the sea. foreign vessels to the prejudice of our economyand national security.

The first was held in 1958 at Geneva, Switzerland, and resulted in An archipelago is a group of islands, including parts of islands,
the adoption of the Convention on the Territorial Sea and the interconnectingwaters and other natural features which are so closely
Contiguous Zone, the Convention of the High Seas, and the interrelated that suchislands, waters and other natural features form
Convention on Fishing and the Living Resources of the High Seas, an intrinsic geographical,economic, and political entity, or which
and the Convention on the Continental Shelf. It failed however to historically have been regarded as such.
define the breadth of the territorial sea. The Philippines did not ratify
it because of the absence of provisions recognizing the archipelago Hence, in defining the internal waters of the archipelago, straight
doctrine it was advocating. baselinesshould be drawn to connect appropriate points of the
outermost islandswithout departing radically from the general
The second conference, which was held in 1960, also at Geneva, direction of the coast so thatthe entire archipelago shall be
likewise left unresolved the question on the breadth of the territorial encompassed as one whole territory. Thewaters inside these
sea. baselines shall be considered internal and thus not subject toentry by
foreign vessels without the consent of the local state.
The third conference, called in 1970 by the United Nations is still in
progress.

5. The Philippine Territorial Sea


7. Basis of the Article I of the 1987 Constitution
The claim of the Philippines to its territorial sea is based on historic
right or title oras it is often called the treaty limits theory. Article I of the 1987 Constitution was based on R.A. 3046 as
amended by R.A.No. 5446 declaring the Philippine territorial sea.
6. The Archipelago Doctrine
8. Methods of defining the Territorial Sea
The Philippine position on the definition of its internal waters is
commonly known as the archipelago doctrine. This is articulated in Two Methods Defining the Territorial Sea
the second sentence of Article Iof the 1987 Constitution, which
follows: (a) Normal baseline method – the territorial sea is simply drawn
“The national territory comprises the Philippine archipelago, with from thelow-water mark of the coast, to the breadth claimed,
all theislands and waters embraced therein, and all the other following itssinuosities and curvatures but excluding the the internal
waters in baysand gulfs.
(b) Straight baseline method – straight lines are made to • Article 15 of the Civil Code: “laws relating to family rights and
connectappropriate points on the coast without departing radically duties, or to the status, condition and legal capacity of persons, are
from its generaldirection. binding upon citizens of the Philippines, even though living abroad.”

C. The Aerial Domain • Under Article 16 of the Civil Code: “intestate and testamentary
succession, both with respect to the other of succession and to the
The aerial domain – the airspace above the terrestrial domain and amount of successional rights and to the intrinsic validity of
the maritimeand fluvial domain of the state, to an unlimited altitude testamentary provisions, shall be regulated by the national law of the
but not including the outerspace. person whose succession is under consideration, whatever may be
the nature of the property and regardless of the country wherein said
property may be found.”
CHAPTER 10
JURISDICTION • Jurisdiction to tax our citizens, even if not residing in the
Philippines, is also provided for in our Internal Revenue Code for
Jurisdiction is the authority exercised by the state over persons and income received by them “from all sources.”
things within or sometimes outside its territory, subject to certain
exceptions. Indeed, even an alien may be held subject to the laws of a state
whose national interest he has violated, and notwithstanding that the
General Classifications of Jurisdiction offense was committed outside its territory.
1. Personal Jurisdiction
2. Territorial Jurisdiction • Article 2 of the Revised Penal Code, for instance, punishes any
personwho, whether in or outside our territory, should forge or
Subjects of State Jurisdiction counterfeit Philippine currency, utter such spurious securities or
1. its nationals commit any crime against our national security or the law of the
2. the terrestrial domain nations.
3. the maritime and fluvial domain
4. the continental shelf Territorial Jurisdiction
5. the open seas
6. the aerial domain General rule: a state has jurisdiction over all persons and property
7. outer space within its territory.
8. other territories
The jurisdiction of the nation within its own territory is necessary,
Personal Jurisdiction exclusive and absolute. It is susceptible of no limitation not imposed
by itself (The Schooner Exchange v McFaddon).
Personal jurisdiction – is the power exercised by the state over its
nationals. It is based on the theory that a national is entitled to the Exceptions:
protection of his state wherever he may be and is, therefore, bound to 1. Foreign states, heads of states, diplomatic representatives, and
it by a duty of obedience and allegiance. consuls to a certain degree;
Everything found within the territorial domain of the state is under
• Foreign states and their heads are exempt because of the sovereign its jurisdiction. Nationals and aliens, including non-residents, are
equality of states and on the theory that a contrary rule would disturb bound by its laws, and no process from a foreign government can
the peace of nations. Diplomats and consuls enjoy the exemption in take effect for or against them within the territory of the local state
order that they may have full freedom in the discharge of their without its permission.
official functions.
Also, as against all other states, the local state has exclusive title to
2. Foreign state property engaged in non-commercial activities; all property within its territory which it may own in its own
corporate capacity or regulate when under private ownership through
• By fiction of law, public vessels are regarded as extensions of the its police power for forcibly acquire through the power of eminent
territory of the foreign state. domain. Such property is also subject to its taxing power.

3. Acts of state; Maritime and Fluvial Jurisdiction

• Every sovereign state is bound to respect the independence of every General rule: the internal waters of a state are assimilated to the
other sovereign state, and the courts of one country will not sit in land mass and subjected to the same degree of jurisdiction exercised
judgment on the acts of the government of another, done within its over the terrestrial domain.
own territory.
Civil, criminal and administrative jurisdiction is exercised by the flag
4. Foreign merchant vessels exercising the rights of innocent passage state over its public vessels wherever they may be, provided they are
or arrival under stress; not engaged in commerce.

• Innocent passage – navigation through the territorial sea of the Foreign merchant vessels docked in a local port or bay, jurisdiction
state for the purpose of traversing that sea without entering internal is exercised over them by the coastal state in civil matters.
waters, or of proceeding to internal waters, as long as it is not
prejudicial to thepeace, good order or security of the coastal state. Criminal jurisdiction is determined according to either the English
• Arrival under stress – entrance to another state due to lack of rule or the French Rule.
provisions, unseawothiness of the vessel, inclement weather, or other
force majeure, like pursuit by pirates. English rule – the coastal state shall have jurisdiction over all
offenses committed on board, except only where they do not
5. Foreign armies passing through or stationed in its territory with its compromise the peace of the port.
permission;
French rule – the flag state shall have jurisdiction over all offenses
6. Such other persons or property over which it may, by agreement, committed on board such vessel, except only where they
waive jurisdiction. compromise the peace of the port.

Land Jurisdiction The Contiguous Zone


Contiguous Zone – a protective jurisdiction extending beyond the
territorial sea, but not more than 12 miles from the coast of the state. General rule: The open seas or the high seas are res communisand
It is necessary to: available to the use of all states for purposes of navigation, flying
over them, laying submarine cables or fishing.
1. prevent infringement of its customs, fiscal, immigration or
sanitary regulations within its territory or territorial sea; and, Exceptions:

2. punish infringement of the above regulations within its territory or 1. Over its vessels. The flag state has jurisdiction over its public
territorial sea. vessels at all times, whether they be in its own territory, in the
territory of other states or on the open seas. Merchant vessels, on the
other hand, are under its jurisdiction when they are within its
The Continental Shelf territory, when jurisdiction is waived or cannot be exercised by the
territorial sovereign, or when such vessels are on the open seas.
Continental Shelf – refers to a) the seabed and subsoil of the
submarine areas adjacent to the coast but outside the area of the 2. Over pirates. Pirates are enemies of all mankind and may be
territorial sea, to a depth of 200 meters, or beyond that limit, to captured on the open seas by the vessels of any state, to whose
where the depth of superjacent waters admits the of the exploitation territory they may be brought for trial and punishment. Where a
of the natural resources of the said areas; and, b) to the seabed and pirate vessel attempts to escape into territorial waters of another
subsoil of similar areas adjacent to the coasts of islands. state, the pursuing vessel may continue the chase but is under the
obligation of turning over the pirates, when captured, to the
The coastal state has the sovereign right to explore the continental authorities of the coastal state.
shelf and to exploit its natural resources and for this purpose it may
erect on it such installations and equipment as may be necessary. 3. In the exercise of the right of visit and search. Under the laws
of neutrality, the public vessels or aircraft of a belligerent state may
But this right shall not affect the legal nature of the superjacent visit and search any neutral merchant vessel on the open seas and
waters as open seas or of the airspace above such waters and their capture it or its cargo if it is found or suspected to be engaged or to
use as such by other states shall not be impaired or disturbed. have engaged in activities favorable to the other belligerent.

The Patrimonial Sea 4. Under the doctrine of hot pursuit. If an offense is committed by
a foreign merchant vessel within the territorial waters of the coastal
The Exclusive Economic Zone (EEZ) or Patrimonial Sea – state, its own vessels may pursue the offending vessel into the open
extends 200nautical miles from the coast or the baselines. All living seas and upon capture bring it back to its territory. The pursuit must
and non-living resourcesfound therein are claimed to belong be continuous or unabated; otherwise, it will be deemed to have
exclusively to the coastal state. “cooled” and can no longer be resumed.
Aerial Jurisdiction
However, it has not yet been recognized as a rule of international
law. There are no traditional rules in international law regarding the rights
of the subjacent state to its aerial domain.
The Open Seas
Nonetheless, it may be said that the consensus appears to be that the
local state has jurisdiction over the airspace above it to an unlimited
height, or at the most up to where outer space begins. Accordingly,
and as a corollary to this rule, no foreign aircraft, civil or military,
may pass through the aerial domain of a state without its consent.

General rule: Under the Convention on Offenses and Certain Other


Acts Committed on Board Aircraft, it is the state of registration of
the aircraft that has jurisdiction over offenses and acts committed on
board while it is in flight or over the high seas or any other area
outside the territory of any state.

Exceptions: Other state may exercise jurisdiction when---


1. The offense has effect on the territory of such state;
2. The offense has been committed by or against a national or
permanent resident of such state;
3. The offense is against the security of such state;
4. The offense consists of a breach of any rules or regulations
relating to the flight or maneuver of aircraft in force in such state;
and,
5. The exercise of jurisdiction is necessary to ensure the observance
of any obligation of such state under a multilateral international
agreement.