CODES AND NOTES ON CONSTITUTIONAL LAW II

NOTES AND CASES ON CONSTITUTIONAL LAW II

I. THE INHERENT/ FUNDAMENTAL POWERS OF THE STATE
1. Police Power
2. Power of Eminent Domain
3. Power of Taxation

· They are inherent powers because they belong to the very essence of government and without them
no government can exist.

Similarities, Distinctions, and Limitation

Similarities:
· They are inherent in the State and may be exercised by it without need of express constitutional grant.
· They are necessary and indispensable The State cannot continue or be effective unless it is able to
exercise them.
· They are methods by which the State interferes with private rights.
· They all presuppose an equivalent compensation for the private rights interfered with.
· They are exercised primarily by the legislature.

Differences:
Police Power Eminent Domain Taxation

As to regulation/extent regulates both liberty regulates property Regulates property

of power and property rights only rights only
As to who may exercise only the government government and some only the government
private entities
As to the property destroyed because it is -wholesome -wholesome
taken noxious or intended for -taken for a public use -taken for a public use
noxious purpose or purpose or purpose
As to Compensation intangible altruistic full and fair equivalent protection and public
feeling that the person of the property improvements for the
has contributed to the expropriated taxes paid
general welfare

Limitations:
(a) May not be exercised arbitrarily to the prejudice of the Bill of Rights.
(b) Subject at all times to the limitations and requirements of the Constitution and may in proper
cases be annulled by the courts, i.e. when there is a grave abuse of discretion.

A. POLICE POWER

Police Power – is an inherent power of the State to promote the welfare of society by restraining and
regulating the use of liberty and property.
Justification of existence:

· Salus populi est suprema lex – the welfare of the people is the supreme law;

· Sic utere tuo ut alienum non laedas – a person must use his own property so as not to injure another

Scope:
(a) cannot be bargained away through the medium of a treaty or contract (Stone v Mississippi)
(b) may use taxing power as its implement (Tio vs Videogram Regulatory Board)
(c) may use eminent domain as its implement (Assoc. of Small Landowners vs Sec. of Agrarian Reform)
(d) could be given retroactive effect and may reasonably impair vested rights or contracts (police power
prevails over contract)
(e) dynamic, not static, and must move with the moving society it is supposed to regulate

Who may exercise Police Power?

(a) the Legislature (inherent)
(b) President (by delegation)
(c) administrative boards (by delegation)
(d) lawmaking bodies on all municipal levels, including barangay (by delegation)
(e) Municipal governments / LGU's (conferred by statute – general welfare clause of RA 7160)

· Not being a political subdivision but merely an executive authority it has no police power. (MMDA v.
Bel-Air Village Assoc.)

Tests (Limitations):

(a) Lawful subject – interests of the public generally, as distinguished from those of a particular class,
require the exercise of police power

(b) Lawful means – the means employed are reasonably necessary for the accomplishment of the
purpose and not unduly oppressive upon individuals

Additional limitations (when exercised by delegate) [Nachura Reviewer]:

· express grant by law (e.g. RA 7160)
· within territorial limits (for LGU's)
· must not be contrary to law (City Government of Quezon City vs Ericta)
· for municipal ordinances -
1. must not contravene the Constitution or any statute
2. must not be unfair and oppressive
3. must not be partial and discriminatory
4. must not prohibit, but may regulate, trade
5. must not be unreasonable
6. must be general in application and consistent with public policy

· In Ermita-Malate Hotel and Motel Operators Association, Inc. v. Mayor of Manila, police power has
been characterized as the most essential, insistent and least limitable of powers extending as it does “to
all great public needs.”
 “[T}he mere fact that some individuals in the community may be deprived of
their business or a particular mode of earning a living cannot prevent the exercise of police power. ..
[P]ersons licensed to pursue occupations which may in the public need and interest be affected by the
exercise of the police power embark in these occupations subject to the disadvantages which may result
from the exercise of that power. ”

Government can take away a license and increase the cost of license fees even to prohibitive levels, if
public interest dictates so, without any constitutional violations.

Licenses for regulating non-useful occupation are incidental to the exercise of police power and the right
to exact fees is may be implied from that power to regulate. In setting the fees, municipal corporations
are given wider discretion in this class of licenses (than for licenses issued to regular business). Courts
have generally upheld these because of the desirability of imposing restraints on individuals who engage
in these unuseful enterprises.

· In Ynot v. IAC, the Court here ruled that the ban on transportation of carabao under the assailed
ordinance and their outright confiscation and disposal without court hearing is a violation of due process
hence it is an invalid exercise of police power.

The court adopted the measures laid down in the Toribio case.

Protection general welfare is a function of police power which both restrains and is restrained by due
process, which requires notice and hearing.

Case emphasized the need to have a lawful method to follow due process requirement .

Reasons why ordinance is invalid are:

◦ No reasonable connection between means employed (absolute ban on movement of carabeef)
and purpose sought to be achieved (conservation of carabao for general welfare)
◦ Unduly oppressive since petition not given due process or opportunity to be heard in proper
court

B. EMINENT DOMAIN

Eminent Domain – is the use of the government of its coercive authority, upon just compensation, to
forcibly acquire the needed property in order to devote the same to public use. Eminent domain is also
known as expropriation, or condemnation.

Who may Exercise?

1. The Congress (inherent)
2. President
3. various local legislative bodies
4. certain public corporations (e.g. National Housing Authority)
5. Quasi-public corporations (e.g. PLDT)

Eminent Domain Distinguished from Destruction from Necessity

Eminent Domain Destruction from Necessity
· public right
· arises from the laws of society and is vested in
the state or grantee, acting under the right and
power of the state or benefit of the state
· private right vested in every individual with which
the right of state or state necessity has nothing
to do
· comes under the right of necessity, of self-
preservation
· arises under the laws of society or society itself
· cannot require the conversion of the property
taken to public use, nor is there any need for the
payment of just compensation

· The Regional Trial Court (RTC) has the jurisdiction over a complaint for eminent domain.

Requisites of Eminent Domain:

1. Necessity of exercise
2. Private property
3. Taking
4. Public use
5. Just compensation

1. Necessity of Exercise
· genuine necessity, and
· must be of public character
◦ When exercised by legislature – political question
◦ When exercised by a delegate – justiciable question
▪ determine the: (a) adequacy of compensation; (b) necessity of taking; and (c) public
use character

2. Private Property
· General Rule: anything that can come under the dominion of man is subject to expropriation
· Exceptions: money and chose in action (personal right not reduced into possession, i.e. the right to
bring an action to recover debt, money or thing)
· Private property already devoted to public use cannot be expropriated by a delegate acting under a
general grant of authority (City of Manila vs Chinese Community)

3. Taking

Requisites (Republic vs Castellvi):

(a) expropriator must enter a private property
(b) entry must be for more than a momentary period
(c) entry must be under the warrant of legal authority
(d) entry is for public use
(e) the owner is deprived of enjoying his property

· if taking is under police power, it is not compensable

Taking Under Eminent Domain vs Taking in Police Power :

Police Power Eminent Domain
· the prejudice suffered by the individual property · the individual suffers more than his aliquot part
owner is shared in common with the rest of the of the damages, i.e. a special injury above that
community sustained by the rest of the community

· In Amigable v. Cuenca, where there is taking in the constitutional sense, the property owner need not
file a claim for just compensation with the Commission of Audit; he may go directly to the court to
demand payment. Arbitrary action of the government shall be deemed a waiver of its immunity from
suit.

· In City Government v. Ericta, an ordinance of Quezon City, under the guise of exercising police power,
prescribed that at least 6% of the totalarea of memorial parks must be developed and set aside for the
burial of paupers. The Court held that such ordinance is not an exercise of police power but the taking of
private property for public use. Hence, to satisfy the Constitution, there must be compensation.

4. Public Use

Public use – is whatever may be beneficially employed for the general welfare, including both direct or
indirect benefit or advantage to the public

· In Heirs of Ardona v. Reyes, the Court held that the Constitution understand public use in a broad
sense as meaning public welfare. That includes development of tourism.

5. Just Compensation

Just compensation – is fair and full equivalent payment for the loss sustained, which is the measure of
the indemnity, not whatever gain would accrue to the expropriating agency. It is not market value per
se. (Epza v. Dulay)

· Where only part of the property is expropriated: entitlement to consequential damages, if any
+ consequential benefits must be deducted from the total compensation provided consequential
benefits does not exceed consequential damages

◦ Payment of the correct amount + Payment within a reasonable time

· Form of Compensation: Money (However, in Assoc. of Small Landowners vs Sec. of Agrarian

Reform, payment is allowed to be made partly in bonds because it deals with a revolutionary
kind of expropriation).

· Transfer of Title: payment of just compensation before title is transferred.

· Reckoning point of market value of property: either as of the date of taking or filing of the
complaint, whichever comes first

· Entitlement of interest:
◦ General Rule: when there is delay, there must be interest by way of damages (Art. 2209, CC)
◦ Exception: when waived by not claiming the interest
· Payment of Taxes : taxes paid from the time of the taking until the transfer of the title, during which
the owner did not enjoy any beneficial use of the property, are reimbursable by the expropriator.

· Right of the landowner in case of non-payment:

◦ General Rule: landowner is not entitled to recover possession of the property, but only to demand
payment
◦ Exception: when the government failed to pay just compensation within 5 years from the finality of
judgment in expropriation proceedings, there is a right to recover property

· In De Knecht v. Bautista, the court ruled that the expropriation proceeding against the property of
petitioner was arbitrary and cannot receive judicial approval. There was another area where the
expansion of EDSA can be undertaken, which will cost government less, affect lesser homeowners, etc.

· But in Republic vs. Knecht, the same property was ordered expropriated. Apparently, BP 340, which
called for the taking of the property, was enacted after the 1st De Knecht case. De Knecht argued that
there was already a law of the case, which should not be disturbed.

Court responded that while it is true that there was a law of the case, it is equally true that there is
constitutional grant given to the State to take private property upon payment of just compensation.
“Such expropriation proceedings may be undertaken by the [State] not only by voluntary negotiation
with landowners but also by taking appropriate court action or by legislation.”

The prior court decision is no obstacle for the legislature to make its own assessment of the
circumstances that prevailed after the decision as well as supervening events and reaching a conclusion
as to the propriety of undertaking the appropriation of the De Knecht property.

· In the case Republic v. PLDT, the Court ordered the PLDT to allow the reconnection of telephone lines
of the Republic.
◦ No cogent reason appears why Eminent Domain may be availed of to impose only a burden
upon the owner of condemned property without loss of title or possession for public use subject
to just compensation
◦ Case highlights that even services may be subjected to eminent domain

· In City of Manila v. Chinese Community of Manila, the Court said that “[T]he very foundation of the
right to exercise eminent domain is a genuine necessity and that necessity must be of public character.”

· In Epza v. Dulay, P.D. Nos. 76, 464, 794, and 1533 prescribed a formula for arriving at just
compensation in expropriation proceedings , dispense with the need to appoint commissioners to
determine just compensation. The Court held that those decrees are unconstitutional and void for they
constitute “impermissible encroachment on judicial prerogatives.”

· In Republic v. CA, the government argued that the nullification should only have prospective effect.
The Court agreed. Thus under the “operative fact” doctrine, the effect of the invalidated law was
allowed to affect transactions completed before the declaration of nullity.
C. POWER OF TAXATION

Power of Taxation – is a method by which contributions are exacted from persons and property for the
support of government and for all public needs.

The importance of taxation derives from the unavoidable obligation of the government to protect the
people and extend to them benefits in the form of public projects and services.

Obligation to pay taxes is a duty (not a contract)

Non-payment of taxes may be a subject of criminal prosecution and punishment

Exception: Poll Taxes

Lifeblood Doctrine
Exception: Injustice against an innocent party (paying taxes)

Taxes vs Licenses
Tax (Primary) License (incidental)

· to raise revenues · for regulatory purpose only

· justified under police power
· amount of fees required is usually limited to the
cost of regulation. Exception: Taxes imposed to
discourage (implement as police power)

Scope
· all income earned in the taxing state, whether by citizens or aliens, and all immovable and tangible
personal properties found in its territory, as well as tangible personal property owned by persons
domiciled therein

Power to Tax Includes Power to Destroy

(1) when used validly as an implement of the police power in discouraging and in effect ultimately
prohibiting certain things or enterprises inimical to public welfare

Power to Tax Does Not Include Power to Destroy

· where the tax is used solely for the purpose of raising revenues

Who May Exercise Taxation?

1. Legislature / Congress (inherent)
2. President (by delegation / tariff powers [Sec. 28 (2), Art. VI, Consti])
 The Congress may, by law, authorize the President to fix within specified limits, and subject to
such limitations and restrictions as it may impose, tariff rates, import and export quotas,
tonnage and wharfage dues, and other duties or imposts within the framework of the national
development program of the Government.

3. Local legislative bodies (conferred by direct authority [Sec. 5, Art. X, Consti])

 Local Autonomy
 o Power to create its own revenue subject to the guidelines and laws of congress
 General Rule: Statutory Grant for LGU taxing power
o Exception: Taxing is incidental to police power of regulation

Limitations of Taxation:
1. Due Process of Law
2. Equal Protection
3. Public Purpose

1. Due Process
· Substantive : tax should not be confiscatory except when used as an implement of police power
· Procedural : due process does not require previous notice and hearing before a law prescribing specific
taxes on specific articles may be enacted. However, where the tax to be collected is to be based on the
value of the taxable property, the taxpayer is entitled to be notified of the assessment proceedings and
to be heard therein on the correct valuation of the property.

2. Equal Protection
· embodied in Sec. 28 (1), Art. VI, 1987 Constitution (The rule of taxation shall be uniform and equitable.
The Congress shall evolve a progressive system of taxation.)

· Uniformity – persons or things belonging to the same class shall be taxed at the same rate
◦ Requisites (Tan vs Del Rosario):
(a) standards that are used are substantial and not arbitrary
(b) categorization is germane to achieve the legislative purpose
(c) the law applies, all things being equal, to both present and future conditions
(d) classification applies equally well to all those belonging to the same class

· Equitable taxation – based on the capacity to pay

· Equality in taxation – tax shall be strictly proportional to the relative value of the property

· Progressive system of taxation – the rate increases as the tax base increases

3. Public Purpose
· whatever may be beneficially employed for the general welfare (directly, or indirectly)

· Double Taxation / Direct Duplicate Taxation

◦ when additional taxes are laid on the same subject by the same taxing jurisdiction during the
same taxing period and for the same purpose.
◦ despite the lack of specific prohibition, double taxation will not be allowed if it results in a
violation of the equal protection clause.

· Tax Exemptions may either be:

◦ constitutional
▪ Art. Vi, Sec. 28 (3) : when lands, buildings and improvements are actually, directly and
exclusively for religious, charitable or educational purposes – entitled to exemption
 Donations to priest may be taxed, as this is an excise tax and not a property tax
as mentioned in the constitution.
 ◦ Statutory- discretion of legislature
 If gratuitously granted for economic policy
o Legislature may withdraw such exemption as any time
 If granted for valuable consideration deemed to partake of a nature of a
contract or obligation (impairment clause – protected against impairment)
o However. In franchises, tax exemptions not to be confused with
contractual tax exemptions, the former are in a nature of a grant and
beyond the purview of the non impairment clause of the constitution.

II. CIVIL AND POLITICAL RIGHTS

Bill of Rights – set of prescriptions setting forth the fundamental civil and political rights of the
individual, and imposing limitations on the powers of the government as a means of securing the
enjoyment of those rights.

Significance of the Bill of Rights

Government is powerful. When unlimited, it becomes tyrannical. The Bill of Rights is a guarantee that
there are certain areas of a person's life, liberty, and property which governmental power may not
touch.

· Bill of Rights are generally self-implementing.

Classification of Rights

1. Political Rights – granted by law to members of community in relation to their direct or indirect
participation in the establishment or administration of the government;

2. Civil Rights – rights which municipal law will enforce at the instance of private individuals for the
purpose of securing them the enjoyment of their means of happiness;

3. Social and Economic Rights; and,

4. Human Rights.

A. DUE PROCESS

Section 1, Art. III. No person shall be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws.

· no precise definition because it might prove constricting and prevent the judiciary from adjusting it to
the circumstances of particular cases
· responsiveness to the supremacy of reason, obedience to the dictates of justice
· embodiment of sporting idea on fair play
· guaranty against any arbitrariness on the part of the government

Protection of Person
Covers Natural (citizen and alien) and Artificial Persons. As to the latter, with respect only to property
because its life and liberty are derived from and subject to control of legislature

The State, like any other litigant, is also entitled to its day in court.

Deprivation (in Sec. 1, Art. III)

· connotes denial of right to life, liberty or property

· not unconstitutional. what is prohibited is deprivation without due process of law.
· When the State acts to interfere with life, liberty, or property, the presumption is that the action is
valid.

1. Life
· 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 good life... a life of dignity and... a decent standard of living.

2. Liberty
(1) freedom to do right and never wrong; it is ever guided by reason and the upright and honorable
conscience of the individual (Mabini)
(2) right to be free from arbitrary personal restraint or servitude
(3) A person is free to act but he may exercise his rights only in such manner as not injure the rights
others
Salus populi est suprema lex

3. Property
· anything that can come under the right of ownership and be the subject of contract
· all things within the commerce of man
· However, one cannot have a vested right to a public office as this is not regarded as property. If
created by statue, it may be abolished by the legislature at any time.
· Mere privileges are not property rights and are therefore revocable at will
- While one may not be deprived of his vested right, he may lose the same if there is due process and
such deprivation is founded in law and jurisprudence.

Aspects of Due Process

1. Substantive Due Process – intrinsic validity of the law in interfering with the rights of the person to his
life, liberty or property.
2. Procedural Due Process

· As a substantive requirement, it is a prohibition of arbitrary laws.

· As a procedural requirement, it relates chiefly to the mode of procedure which government agencies
must follow in the enforcement and application of laws. It is a guarantee of procedural fairness.

Substantive Due Process

Substantive due process – requires intrinsic validity of the law in interfering with the rights of the
person to his life, liberty or property

Requisites:
(a) Lawful Subject
(b) Lawful Means

Procedural Due Process

Procedural due process – is the restriction on actions of judicial and quasi-judicial agencies of
government.

1. Judicial Due Process

Requisites:
(a) Impartial court or Tribunal clothes with judicial power to hear and determine the matter before it
(b) Jurisdiction lawfully acquired over the person of the defendant and/or property
(c) Hearing (opportunity to be heard)
 Appeal – right to appeal is not essential to the right to a hearing. Except when
guaranteed by the Constitution.
o It may be allowed or denied by the legislature in its discretion.
o If allowed by statute, it must be exercised strictly in accordance with the
provisions of the law and rules
· not necessarily trial-type hearing; submission of position papers is enough
· right of a party to cross-examine the witness against him in a civil case is an indispensable part
of due process
· the filing of a motion for reconsideration cures the defect of absence of a hearing
· Cases in which notice and hearing may be dispensed with without violating due process:
◦ abatement of nuisance per se
◦ preventive suspension of a civil servant facing administrative charges
◦ cancellation of passport of a person sought for the commission of a crime
◦ statutory presumptions
(d) Judgment rendered upon lawful hearing (Banco Espanol Filipino v. Palanca)

2. Administrative Due Process

Requisites:
(a) Right to a hearing
(b) Tribunal must consider the evidence presented
(c) Decision must have something to support itself
(d) Evidence must be Substantial
(e) Decision must be rendered on the evidence presented at the hearing, or at least contained in the
record and disclosed to the parties affected
(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
(g) Decision is rendered in such a manner that the parties to the proceeding can know the various issues
involved, and the reason for the decision rendered
· In administrative proceedings, the quantum of proof required is only substantial evidence, such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

· The law is vague when it lacks comprehensible standards that men “of common intelligence must
necessarily guess as to its meaning and differ as to its application. It is repugnant to the Constitution in
two respects:
▪ it violates due process for failure to accord persons fair notice of conduct to avoid; and,
▪ it leaves law enforcers unbridled discretion in carrying out its provisions and becomes arbitrary
flexing of the Government muscle.

· In Estrada vs. Sandiganbayan, it was held that there was no violation of due process because the
nature of the charges against the petitioner is not uncertain and void merely because general terms are
used or because it employed terms that were not defined. The Anti-Plunder law does not violate due
process since it defines the act which it purports to punish, giving the accused fair warning of the
charges against him, and can effectively interpose a defense against on his behalf.

· A Connecticut statute making it a crime to use any drug or article to prevent conception violates the
right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights.
◦ Although the Bill of Rights does not mention ‘privacy’ the Court ruled that that the right was to
be found in the "penumbras" of other constitutional protections. “The First Amendment has a
penumbra where privacy is penumbra where privacy is protected from governmental intrusion.”

· In Lochner v. New York, Lochner was charged with violation of the labor laws of New York for
wrongfully and unlawfully permitting an employee to work more than 60 hours in one week. The statute
allegedly violated mandates that no employee shall contract or agree to work more than 10 hours per
day.
Issue: Whether the statute is unconstitutional.
Ruling: Yes.

The statute is unconstitutional. The statute interferes with the liberty of a person and the right of free
contract between employer and employee by determining the hours of labor in the occupation of a
baker without reasonable ground for doing so.

The general right to make a contract in relation to one’s business is a liberty protected by the 14th
amendment.

The state may interfere with and regulate both property and liberty rights to prevent the individual from
making certain kinds of contracts in its exercise of police power which relates to safety, health, morals
and general welfare of the society. In this instance, the 14th amendment cannot interfere.

The trade of a baker is not an alarmingly unhealthy one that would warrant the state’s interference with
rights to labor and contract.

Doctrine: The rule must have a more direct relation, as means to an end, and the end itself must be
appropriate and legitimate, before an 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 relation to his own labor.
· Our cases include Court of Industrial Relations (Ang Tibay vs. CIR) as an administrative court which
exercises judicial and quasi-judicial functions in the determination of disputes between employers and
employees. National Telecommunications Company (PHILCOMSAT vs. Alcuaz), National Labor Relations
Commission or NLRC (DBP vs. NLRC) and school tribunals (Ateneo vs. CA-Board of Discipline, Alcuaz vs.
PSBA, Non vs. Judge Dames, Tinker vs. Des Moines Community School District) also are clothed with
quasi-judicial function. It is a question of whether the body or institution has a judicial or quasi-judicial
function that makes it bound by the due process clause. (Judicial function is synonymous to judicial
power which is the authority to settle justiciable controversies or disputes involving rights that are
legally enforceable 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 rights of the parties are with respect to a matter in
controversy).

· In Ang Tibay vs. CIR, the Court laid down cardinal requirements in administrative proceedings which
essentially exercise a judicial or quasijudicial function. These are:
(1) the right to a hearing, which includes the right to present one’s case and submit evidence in support
thereof
(2) The tribunal must consider the evidence presented
(3) The decision must have something to support itself
(4) The evidence must be substantial. Substantial evidence means such a reasonable evidence as a
reasonable mind might accept as adequate to support a conclusion
(5) The decision must be based on the evidence presented at the hearting or at least contained in the
record and disclosed to the parties affected
(6) The tribunal or body of any of its judges must act on its own independent consideration of the law
and facts of the controversy and not simply accept the views of a subordinate
(7) The Board or body should, in all controversial questions, render its decision in such manner that the
parties to the proceeding can know the various issues involved and the reason for the decision
rendered.

B. EQUAL PROTECTION
Section 1, Art. III. No person shall be deprived of life, liberty, or property without due process
of law, nor shall any person be denied the equal protection of the laws.

· The Equality Protection Clause is a specific constitutional guarantee of the Equality of the Person. The
equality it guarantees is “legal equality or, as it is usually put, the equality of all persons before the law.
· embraced in the concept of due process
· embodied in a separate clause to provide for a more specific guaranty against undue favoritism or
hostility from the government

Due Process Clause attacks arbitrariness in general

Equal Protection Clause attacks unwarranted partiality or prejudice

Substantive Equality – all persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed.

Equality in enforcement of the law – law be enforced and applied equally

Requisites of Valid Classification:

(a) it must be based on substantial distinctions
(b) it must be germane to the purposes of the law
(c) it must not be limited to existing conditions only
◦ must be enforced as long as the problem sought to be corrected exists
(d) it must apply equally well to all members of the class
◦ both as to rights conferred and obligations imposed

· In De Guzman v. Comelec, petitioners theorize that Sec. 44 of RA 8189 is violative of the equal
protection clause because it singles out the City and Municipal Election Officers of the COMELEC as
prohibited from holding office in the same city or municipality for more than four years. The Court held
that the law is valid. The singling out of election officers in order to “ensure the impartiality of election
officials by preventing them from developing familiarity with the people of their place of assignment.

· In Ormoc Sugar Central v. Ormoc City, Ormoc City imposes a tax on Ormoc Sugar Central by name.
Ormos Sugar Central is the only sugar central in Ormoc City. The Court held that such ordinance is not
valid for it would be discriminatoory against the Ormoc Sugar Central which alone comes under the
ordinance.

C. SEARCH AND SEIZURE

Section 2, Art. III. The right of the people to be secure in their persons,houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
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 particularly describing
the place to be searched and the persons or things to be seized.

Section 2, Art. III – deals with tangibles; embodies the “castle” 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 domain and
privacy of his own home.)

· This provision applies as a restraint directed only against the government and its agencies tasked with
enforcement of the law. It does not protect citizens from unreasonable searches and seizures
perpetrated by private individuals.

Section 3, Art. III. (1)The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by
law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for
any purpose in any proceeding.

Section 3 (1), Art. III – deals with intangibles

Section 3 (2), Art. III – Exclusionary Rule (which embodies the Doctrine of the Fruit of the Poisonous
Tree)

Exclusionary Rule – evidence obtained in violation of Sec. 2, Art.III, shall be inadmissible for any purpose
in any proceeding (Fruit of Poisonous Tree Doctrine). (Stonehill v. Diokno)
· available to natural and artificial persons, but the latter's books of accounts may be required to open
for examination by the State in the exercise of police power or power of taxation The right is personal
(Stonehill vs Diokno)

· General Rule: only a judge may issue a warrant.

Exception: orders of arrest may be issues by administrative authorities but only for the purpose of
carrying out a final finding of a violation of a law

Valid Warrantless Searches

[NOTE: each of these requires probable cause, except stop and frisk]

1. searches incidental to lawful arrest (rule 126, Rules of Court) – for dangerous weapons or anything
that may have been used or constitute in the commission of an offense

Requisites:
1. the item to be searched was within the arrestee's custody or area of immediate control
2. the search was contemporaneous with the arrest

2. searches of moving vehicles

· In Aniag v. Comelec, twenty meters away from the gate of the Batasan, a truck was stopped and
searched. The motorists had not given any evidence of suspicious behaviour nor had the searching
officers received any confidential information about the car. The Court held that the search was not
justifiable as a warrantless arrest of a moving vehicle as there was no probable cause.

3. searches of prohibited articles in plain view

Requisites:
1. prior valid intrusion to a place
2. evidence was inadvertently discovered by the police who has the right to be there
3. evidence is immediately apparent
4. there is no further search

4. enforcement of customs law

5. consented searches

6. stop and frisk (limited protective search of outer clothing for weapons)

· In Terry v. Ohio, the stop-and-frisk rule is stated thus: “(W)here a police officer observes unusual
conduct which leads him reasonably to conclude in the light of his experience that criminal activity may
be afoot and that the person with whom he is dealing may be armed and presently dangerous, where in
the course of investigation of this behavior he identifies himself as a policeman and makes reasonable
inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for
his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a
carefully limited search of the outer clothing of such persons in an attempt to discover weapons which
might be used to assault him.”

· Stop-and-frisk rule serves a two-fold interest:

(1) the general interest of effective crime prevention and detection;
(2) the more pressing interest of safety and self-preservation. (Malacat)

7. routine searches at borders and ports of entry

8. searches of businesses in the exercise of visitorial powers to enforce police regulations

Valid Warrantless Arrest

1. in flagrante delicto
2. hot pursuit
3. the offender escaped from the penal establishment

Requisites of a valid warrant

Arrest Warrant Search Warrant

1. Probable Cause
must refer to one (1) specific
offense
2. Personal determination of
probable cause by the judge
Such facts and circumstances
which would lead a reasonably
prudent man to believe that an
offense has been committed and
the person sought to be arrested
had committed it
The judge personally determines
the existence of probable cause;
it is not necessary that he should
personally examine the
complainant and his witnesses
(Soliven vs Makasiar)
Procedure:
(1) personally evaluate the
fiscal's report, or
(2) if [1] is insufficient, disregard
it and require the submission of
supporting affidavits of
witnesses
Preliminary inquiry (task of
the judge) – determination of
probable cause for the issuance
of warrant of arrest
Preliminary investigation proper
(task of the prosecutor) –
ascertainment whether the
offender should be held for trial
Such facts and circumstances
which would lead a reasonably
prudent man to believe that an
offense has been committed
and the objects sought in the
connection of the offense are in
the place sought to be searched
The judge must personally
examine in the form of searching
questions and answers...
in writing and under oath...
the complainants and his
witnesses...
on facts personally known to
them...
and attach to the record their
sworn statements and affidavits.
(Silva vs Presiding Judge)
released
 or be

3. After examination under oath
or affirmation of the
complainant and the witnesses
he may produce
4.Particularity of description
Not merely routinary but must
be probing and exhaustive
General Rule: it must contain
the name/s of the persons to be
arrested
Exception: if there is some
descriptio personae which will
enable the officer to identify the
accused
Not merely routinary but must
be probing and exhaustive
General Rule: when the
description therein is as specific
as the circumstances will
ordinarily allow.
Exception: when no other more
accurate and detailed
description could have been
given.

· In Valmonte v. Gen. De Villa, the Court held that not all searches and seizures are prohibited. Those
which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed
formula but is to be resolved according to the facts of the case. Checkpoints are not illegal per se...
Routine inspection and few questions do not constitute unreasonable searches. If the inspection
becomes more thorough to the extent of becoming a search, this can be done when there is deemed to
be probable cause. In the latter situation, it is justifiable as a warrantless search of a moving vehicle.

Probable Cause – facts and circumstances antecedent to the issuance of a warrant that are in
themselves sufficient to induce a cautious man to rely upon them.

· In Corro v. Lising, the Affidavit of Col. Castillo stated that in several issues of the Philippine Times:”...
we found that the said publication in fact foments distrust and hatred against the government of the
Philippines. The Court held that the affidavit does not establish probable cause, and is nothing but
conclusions of law.

· In Burgos v. Chief of Staff, a search warrant for the newspaper WE Forum is issued on the basis of a
broad statement of the military that Burgos, Jr. is “in possession of printing equipment and other
paraphernalia... used as means of committing the offense of subversion.” The Court held that such
allegation is not sufficient to establish probable cause. It is a mere conclusion of law unsupported by
particulars.

The Court also held that the search warrant description has the “sweeping tenor” making the document
a general warrant. The search warrant particularly states:”all printing equipment, typewriters... of the
WE Forum newspaper and any other documents...” It is not required that the property to be searched
should be owned by the person against whom the search warrant is directed. It is sufficient that the
property is under the control or possession of the person sought to be searched.

· In Soliven v. Judge Makasiar, the Court clarified the meaning of “personally” in the search and seizure
clause. It stated that in arriving at a conclusion as to the existence of existence of probable cause, what
is required is personal determination and not personal examination.
· In Lim v. Felix, the Court held that the judge in issuing a warrant of arrest cannot rely solely on the
certification or recommendation of a prosecutor that probable cause exists. The judge must look at the
report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents
behind the Prosecutor's certification.

· 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: “ Book of accounts, financial
records, vouchers...and other documents showing all business transactions....” The Court further held
that the objection to an unlawful search or seizure and to evidence obtained thereby is purely personal
and cannot be availed by third parties.

D. MIRANDA RIGHTS
Section 12, Art. III.
1. Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of
counsel.
2. No torture, force, violence, threat, intimidation, or any other means which vitiate the free
will shall be used against him. Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited.
3. Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
4. The law shall provide for penal and civil sanctions for violations of this Section as well as
compensation to the rehabilitation of victims of torture or similar practices, and their families.

· called the “Miranda Doctrine” (Miranda vs Arizona)

Miranda Doctrine – prior to any questioning during custodial investigation, the person must be warned
that he has a right to remain silent, that any statement he gives may be used as evidence against him,
and that he has the right to the presence of an attorney, either retained or appointed. The defendant
may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and
intelligently.

Purpose of the Doctrine

In Miranda v Arizona, the US Supreme Court established rules to protect a criminal defendant's
privilege against self-incrimination from the pressures arising during custodial investigation by the
police. Thus, to provide practical safeguards for the practical reinforcement for the right against
compulsory self-incrimination, the Court held that “the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege against self-
incrimination.

Requisites of the Miranda Doctrine

(1) any person under custodial investigation has the right to remain silent;
(2) anything he says can and will be used against him in a court of law;
(3) he has the right to talk to an attorney before being questioned and to have his counsel present when
being questioned; and
(4) if he cannot afford an attorney, one will be provided before any questioning if he so desires.

Custodial investigation defined

· Any questioning initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.
· Begins as soon as the investigation is no longer a general inquiry unto an unsolved crime, and direction
is then aimed upon a particular suspect who has been taken into custody and to whom the police would
then direct interrogatory questions which tend to elicit incriminating statements.
· Shall include the practice of issuing an invitation to a person who is investigated in connection with an
offense he is suspected to have committed, without prejudice to the liability of the inviting officer for
any violation of law.

Extrajudicial confession is Admissible when:

(a) Voluntary
(b)With assistance of counsel
(c) In writing, and
(d) Express

Rights Under Custodial Investigation

(a) To be informed of right to remain silent and to counsel

· Carries the correlative obligation on the part of the investigator to explain and contemplates
effective communication which results in the subject understanding what is conveyed. (People
v. Agustin)

(b) To be reminded that if he waives his right to remain silent, anything he says can and will be used
against him
(c) To remain silent
(d) To have competent and independent counsel preferably of own choice
(e) To be provided with counsel if the person cannot afford the services of one
(f) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be
used against him
(g) Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited
(h) Confessions or admissions obtained in violation of these rights are inadmissible as evidence
(exclusionary rule)

Rights That May Be Waived

[waiver must be in writing and in the presence of counsel]
(a) Right to remain silent
(b) Right to Counsel

Rights That Cannot Be Waived

(a) Right to be informed of his right to remain silent and to counsel
(b) Right to counsel when making the waiver of the right to remain silent or to counsel
· Right to counsel de parte is not unlimited. Accused cannot repeatedly ask for postponement.
He must be provided with counsel de oficio.
· RA 7309: victims of unjust imprisonment may file their claims with the Board of Claims under
DOJ
· Res Gestae: The declaration of the accused acknowledging guilt made to the police desk officer after
the crime was committed may be given in evidence against him by the police officer to whom the
admission was made, as part of the res gestae.

· In People v. Galit, rights under custodial investigation may be waived. The Constitution says; “These
rights cannot be waived except in writing and in the presence of counsel.” In localities where there are
no lawyers, the State must bring the individual to a place where there is one.

· Termination of rights under custodial investigation: When Charges are filed against the accused (in
such case, Sections 14 and 17 come into play).

· In Gutang v. People, the Court held that urine sample is admissible. “What the Constitution prohibits is
the use of physical or moral compulsion to extort communication from the accused, but not an inclusion
of his body in evidence, when it may be material. In fact, an accused may be validly compelled to be
photographed or measured, or his garments or shoes removed or replaced, or to move his body to
enablke the foregoing things to be done, without running afould of the proscription against testimonial
compulsion.

E. RIGHT TO BAIL

Section 13, Art. III. All persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided by law. The right to bail shall not
be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail
shall not be required.

Bail – is security given for the release of a person in custody of law, furnished by him or a bondsman, to
guaranty his appearance before any court as may be required

Kinds of Bail
(a) Cash bond
(b) Security bond

Who May Invoke?

A person under detention even if no formal charges have yet been filed (Rule 114, Rules of Court)

Who Are Entitled?

(a) Persons charged with offenses punishable by Reclusion Perpetua or Death, when evidence of guilt is
strong
(b) Persons convicted by the trial court. Bail is only discretionary pending appeal.
(c) Persons who are members of the AFP facing a court martial.

· In Paderanga v. CA, all persons actually detained, except those charged with offenses punishable by
reclusion perpetua or death when evidence of guilt is strong, shall, before conviction, be bailable but
sufficient sureties. One is under the custody of the law either when he has been arrested or has
surrendered himself to the jurisdiction of the court, as in the case where through counsel petitioner for
bail who was confined in a hospital communicated his submission to the jurisdiction of the court.

Other Rights in Relation to Bail

· The right to bail shall NOT be impaired even when the privilege of the writ of habeas corpus is
suspended.
· Excessive bail shall not be required.

Factors in Fixing Amount of Bail

(a) Ability to post bail
(b) Nature of the offense
(c) Penalty imposed by law
(d) Character and reputation of the accused
(e) Health of the accused
(f) Strength of the evidence
(g) Probability of appearing at the trial
(h) Forfeiture of previous bail bonds
(i) Whether accused was a fugitive from justice when arrested
(j) If accused is under bond in other cases

Implicit Limitations on the Right to Bail

(a) The person claiming the right must be in actual detention or custody of the law.

· In People v. Donato, charged with rebellion, a bailable offense, Salas nevertheless agreed “to remain in
legal custody during the pendency of the trial of his criminal case.” The Court held that he does not have
the right to bail, because bu his act he has waived his right.

(b) The constitutional right is available only in criminal cases, not, e.g. in deportation and extradition
proceedings.

Note:
(a) Right to bail is not available in the military.

· 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 only to those who are equally situated.

(b) Apart from bail, a person may attain provisional liberty through recognizance.

· In US v. Puruganan, the Court held that extradition is not a criminal proceeding. Hence, since bail is
available only in criminal proceedings, a respondent in an extradition proceeding is not entitled to a bail.
He should apply for a bail in the court where he will be tried.
 F. RIGHTS OF THE ACCUSED
Section 14, Art. III.
1. No person shall be held to answer for a criminal offense without due process of law.
2. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy, impartial, and public trial,
to meet the witnesses face to face, and to have compulsory process to secure the attendance
of witnesses and the production of evidence in his behalf. However, after arraignment, trial
may proceed notwithstanding the absence of the accused: Provided, that he has been duly
notified and his failure to appear is unjustifiable.

The Rights of the Accused Include

1. Criminal due process;
2. Presumption of innocence;
3. Right to be heard by himself or counsel;
4. Right to be informed of the nature and cause of the accusation against him;
5. Right to speedy, impartial and public trial;
6. Right to meet the witnesses face to face;
7. Right to compulsory process to secure attendance of witnesses and production of evidence; and
8. trial in absentia

1. Criminal Due Process

Criminal process includes

a) Investigation prior to the filing of charges

b) Preliminary examination and investigation after charges are filed
c) Period of trial

Requirements of Criminal Due Process

1. Impartial and competent court in accordance with procedure prescribed by law;

2. Proper observance of all the rights accorded the accused under the Constitution and the applicable
statutes (example of statutory right of the accused: right to Preliminary investigation)

· Mistrial may be declared if shown that proceedings were held under circumstances as would prevent
the accused from freely making his defense or the judge from freely arriving at his decision.

· There is violation of due process when law not published and a person is impleaded for violation of
such law.

· There is violation of due process when appeal is permitted by law but there is denial thereof.

2. Presumption of Innocence

· Burden of proof to establish the guilt of the accused is with the prosecution.

· Conviction depends on the strength of prosecution, not on the weakness of the defense
· The presumption may be overcome by contrary presumption based on the experience of human
conduct. (e.g unexplained flight may lead to an inference of guilt, as “the wicked flee when no man
pursueth, but the righteous are as bold as a lion.”)

· The constitutional presumption will not apply as long as there is some rational connection between the
fact proved and the ultimate fact presumed, and the inference of one fact from proof of another shall
not be so unreasonable as to be a purely arbitrary mandate. – Cooley

· No inference of guilt may be drawn against an accused for his failure to make a statement of any sort.

· In Dumlao v. Comelec, for the purposes of disqualification in an election, section 4 of BP Blg. 52 says
that” the filing of charges for the commission of such crimes before civil court or military tribunal after
preliminary investigation shall be prima facie evidence of such fact (disqualification).” The Court held
that this provision violates the guarantee of presumption of innocence. Although filing of charges is only
prima facie evidence and may be rebutted, the proximity of elections and consequent risk of not having
time to rebut the prima facie evidence already in effect make him suffer as though guilty even before
trial.

Equipoise Rule – evidence of both sides are equally balanced, in which case the constitutional
presumption of innocence should tilt the scales in favor of theaccused.
3. Right to be Heard by Himself and Counsel

· Indispensable in any criminal prosecution where the stakes are the liberty or even the life of the
accused

· Assistance of counsel begins from the time a person is taken into custody and placed under
investigation for the commission of a crime.
▪ This is not subject to waiver.

· Right to counsel means the right to effective representation.

· If the accused appears at arraignment without counsel, the judge must:

(a) Inform the accused that he has a right to a counsel before arraignment;
(b) Ask the accused if he desires the aid of counsel;
(c) If the accused desires counsel, but cannot afford one, a counsel de oficio must be appointed;
(d) If the accused desires to obtain his own counsel, the court must give him a reasonable time
to get one.

4. Nature and Cause of Accusation

Purpose for the Right to be informed of the Nature and Cause of Accusation

(1) To furnish the accused with a description of the charge against him as will enable him to make his
defenses;
(2) To avail himself of his conviction or acquittal against a further prosecution for the same cause;
(3) To inform the court of the facts alleged.
· The description and not the designation of the offense is controlling (The real nature of the crime
charged is determined from the recital of facts in the information. It is not determined based on the
caption or preamble thereof nor from the specification of the provision of law allegedly violated.)

· If the information fails to allege the material elements of the offense, the accused cannot be convicted
thereof even if the prosecution is able to present evidence during the trial with respect to such
elements.

Void for Vagueness Rule – accused is denied the right to be informed of the charge against him and to
due process as well, where the statute itself is couched in such indefinite language that it is not possible
for men of ordinary intelligence to determine therefrom what acts or omissions are punished and
hence, shall be avoided.

· In Estrada vs Sandiganbayan, the Court held that the Void for Vagueness Doctrine merely requires a
reasonable degree of certainty and not absolute precision or mathematical exactitude.

5. The Trial

Factors in Determining Whether There Is Violation

(a) Time expired from the filing of the information
(b) Length of delay involved
(c) Reasons for the delay
(d) Assertion or non-assertion of the right by the accused
(e) Prejudice caused to the defendant.

· Effect of dismissal based on violation of this right: it amounts to 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 of
the accused

Remedy if the Right is Violated

(1) He can move for the dismissal of the case;

(2) If he is detained, he can file a petition for the issuance of writ of habeas corpus.

Speedy trial -
1. Free from vexatious, capricious and oppressive delays
2. To relieve the accused from needless anxieties before sentence is pronounced upon him

Impartial trial – the accused is entitled to the “cold neutrality of an impartial judge”. It is an element of
due process.

· Public trial: The attendance at the trial is open to all irrespective of their relationship to the accused.
However, if the evidence to be adduced is “offensive to decency or public morals”, the public may be
excluded.

· The right of the accused to a public trial is not violated if the hearings are conducted on Saturdays,
either with the consent of the accused or if failed to object thereto.
· The right to be present covers the period from arraignment to promulgation of sentence.

· General Rule: the accused may waive the right to be present at the trial by not showing up. However,
the court can still compel the attendance of the accused if necessary for identification purposes.

▪ Exception: If the accused, after arraignment, has stipulated that he is indeed the person
charged with the offense and named in the information, and that any time a witness refers to a
name by which he is known, the witness is to be understood as referring to him.

· Trial in Absentia is mandatory upon the court whenever the accused has been arraigned.

· There is also Promulgation in Absentia

· While the accused is entitled to be present during promulgation of judgment, the absence of his
counsel during such promulgation does not affect its validity

· The trial in absentia does not abrogate the provisions of the Rules of Court regarding forfeiture of bail
bond if the accused fails to appear at his trial.

· A court has the power to prohibit a person admitted to bail from leaving the Philippines as this is a
necessary consequence of the nature and function of a bail bond

6. The Right to Meet the Witnesses Face to Face

Purposes of the Right to Meet the Witnesses Face to Face

(1) To afford the accused an opportunity to cross-examine the witness

(2) To allow the judge the opportunity to observe the deportment of the witness

Principal Exceptions to this Right

(1) The admissibility of “dying declarations”
(2) Trial in absentia under Section 14(2)
· With respect to child testimony

· Testimony of witness who was not cross-examined is not admissible as evidence for being hearsay.

· If a prosecution witness dies before his cross-examination can be completed, his direct testimony
cannot be stricken off the record, provided the material points of his direct testimony had been covered
on cross.

· The right to confrontation may be waived.

7. Compulsory Process

· The accused is entitled to the issuance of subpoena ad testificandum and subpoena duces tecum for
the purpose of compelling the attendance of witness and the production of evidence that he may need
for his defense.
· Failure to obey – punishable as contempt of court.
· There are exceptional circumstances when the defendant may ask for conditional examination,
provided the expected testimony is material of any witness under circumstances that would make him
unavailable from attending the trial.

8. Trial in Absentia

Trial in Absentia May Only Be Allowed If the Following Requisites Are Met:

(1) the accused has been validly arraigned;

(2) Accused has already been arraigned;
(3) Accused has been duly notified of the trial; and
(4) His failure to appear is unjustifiable.

G. HABEAS CORPUS
Section 15, Art. III. The privilege of the writ of habeas corpus shall not be suspended except in
cases of invasion or rebellion, when the public safety requires it.

Writ of Habeas Corpus – is a written order issued by a court, directed to a person detaining another,
commanding him to produce the body of the prisoner at a designated time and place with the day and
cause of his caption and detention.

Privilege of the Writ of Habeas Corpus – the right to have an immediate determination of the legality of
the deprivation of physical liberty.

The President may suspend the privilege:

(1) in cases of invasion or rebellion

(2) when public safety requires it.

· Habeas corpus lies only where the restraint of a person's liberty has been judicially adjudged to be
illegal or unlawful (In re: Sumulong)

· The writ is a prerogative writ employed to test the validity of detention

· To secure the detainee’s release

· The action shall take precedence in the calendar of the court and must be acted upon immediately

When available (enumeration not exclusive)

restoration of liberty of an individual subjected to physical restraint

may be availed of where, as a consequence of a judicial proceeding:

1. there has been deprivation of a constitutional right resulting in the restraint of the person
2. the court has no jurisdiction to impose the sentence, or
3. an excessive penalty has been imposed, since such sentence is void as to the excess.
 May be extended to cases by which rightful custody of any person is withheld from the person entitled
thereto

When moral restraint is exerted (Caunca vs Salazar)

Right was accorded a person was sentenced to a longer penalty than was subsequently meted out to
another person convicted of the same offense. (Gumabon vs Director of Prisons)

Unlawful denial of bail

When not available (enumeration not exclusive)

the person alleged to be restrained is in the custody of an officer under a process issued by the court
which has jurisdiction to do so
desaparecidos (disappeared persons) – persons could not be found; remedy is to refer the matter to
Commission on Human Rights

Procedure
Need to comply with writ; disobedience thereof constitutes contempt

Who may suspend the privilege

The President

Grounds for Suspension of the privilege

1. invasion or rebellion
2. when public safety requires it

Section 18, Art. VII. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of
habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours
from the 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
jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and
public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual basis of the proclamation of martiallaw or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion
or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.

Lansang doctrine (Lansang vs Garcia): SC has the power to inquire into the factual basis of the
suspension of the privilege of the writ. It is written in Article VII, Sec. 18 of the Constitution.

H. WRIT OF AMPARO

A.M. No. 07-9-12-SC

(25 September 2007)

THE RULE ON THE WRIT OF AMPARO

SECTION 1. Petition. The petition for a writ of amparo is a remedy available to any person whose right
to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a
public official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof.

SEC. 2. Who May File. The petition may be filed by the aggrieved 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;

2. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree
of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or

3. Any concerned citizen, organization, association or institution, if there is no known member of the
immediate family or relative of the aggrieved party.

The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file
similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved
party suspends the right of all others, observing the order established herein.

SEC. 3. Where to File. The petition may be filed on any day and at any time with the Regional Trial Court
of the place where the threat, act or omission was committed or any of its elements occurred, or with
the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. The writ shall
be enforceable anywhere in the Philippines.
When issued by a Regional Trial Court or any judge thereof, the writ shall be returnable before such
court or judge.

When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may be returnable
before such court or any justice thereof, or to any Regional Trial Court of the place where the threat, act
or omission was committed or any of its elements occurred.

When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any
justice thereof, or before the 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 omission was committed or any of its elements
occurred.

SEC. 4. No Docket Fees. The petitioner shall be exempted from the payment of the docket and other
lawful fees when filing the petition. The court, justice or judge shall docket the petition and act upon it
immediately.

SEC. 5. Contents of Petition. The petition shall be signed and verified and shall allege the following:

1. The personal circumstances of the petitioner;

2. The name and personal circumstances of the respondent responsible for the threat, act or omission,
or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation;

3. The right to life, liberty and security of the aggrieved party violated or threatened with violation by an
unlawful act or omission of the respondent, and how such threat or violation is committed with the
attendant circumstances detailed in supporting affidavits;

4. The investigation conducted, if any, specifying the names, personal circumstances, and addresses of
the investigating authority or individuals, as well as the manner and conduct of the investigation,
together with any report;

5. The actions and recourses taken by the petitioner to determine the fate or whereabouts of the
aggrieved party and the identity of the person responsible for the threat, act or omission; and

6. The relief prayed for. The petition may include a general prayer for other just and equitable reliefs.

SEC. 6. Issuance of the Writ. Upon the filing of the petition, the court, justice or judge shall 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 court; or in case of urgent necessity, the justice or the judge may 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 for summary hearing of the petition which shall not be later
than seven (7) days from the date of its issuance.
SEC. 7. Penalty for Refusing to Issue or Serve the Writ. 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 by the court,
justice or judge for contempt without prejudice to other disciplinary actions.

SEC. 8. How the Writ is Served. The writ shall be served upon the respondent by a judicial officer or by a
person deputized by the court, justice or judge who shall retain a copy on which to make a return of
service. In case the writ cannot be served personally on the respondent, the rules on substituted service
shall apply.

SEC. 9. Return; Contents. Within seventy-two (72) hours after service of the writ, the respondent shall
file a verified written return together with supporting affidavits which shall, among other things, contain
the following:

1. The lawful defenses to show that the respondent did not violate or threaten with violation the right to
life, liberty and security of the aggrieved party, through any act or omission;

2. The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved
party and the person or persons responsible for the threat, act or omission;

3. All relevant information in the possession of the respondent pertaining to the threat, act or omission
against the aggrieved party; and

4. If the respondent is a public official or employee, the return shall further state the actions that have
been or will still be taken:

i. to verify the identity of the aggrieved party;

ii. to recover and preserve evidence related to the death or disappearance of the person
identified in the petition which may aid in the prosecution of the person or persons
responsible;
iii. to identify witnesses and obtain statements from them concerning the death or
disappearance;
iv. to determine the cause, manner, location and time of death or disappearance as well as
any pattern or practice that may have brought about the death or disappearance;
v. to identify and apprehend the person or persons involved in the death or
disappearance; and
vi. to bring the suspected offenders before a competent court.

The return shall also state other matters relevant to the investigation, its resolution and the prosecution
of the case.

A general denial of the allegations in the petition shall not be allowed.

SEC. 10. Defenses not Pleaded Deemed Waived. All defenses shall be raised in the return, otherwise,
they shall be deemed waived.

SEC. 11. Prohibited Pleadings and Motions. The following pleadings and motions are prohibited:
1. Motion to dismiss;
2. Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings;
3. Dilatory motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply;
8. Motion to declare respondent in default;
9. Intervention;
10. Memorandum;
11. Motion for reconsideration of interlocutory orders or interim relief orders; and
12. Petition for certiorari, mandamus or prohibition against any interlocutory order.

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 petition ex parte.

SEC. 13. Summary Hearing. The hearing on the petition shall be summary. However, the court, justice or
judge may call for a preliminary conference to simplify the issues and determine the possibility of
obtaining stipulations and admissions from the parties.

The hearing shall be from day to day until completed and given the same priority as petitions for habeas
corpus.

SEC. 14. Interim Reliefs. Upon filing of the petition or at anytime before final judgment, the court,
justice or judge may grant any of the following reliefs:

(a) Temporary Protection Order. The court, justice or judge, upon motion or motu proprio, may order
that the petitioner or the aggrieved party and any member of the immediate family be protected in a
government agency or by an accredited person or private institution capable of keeping and securing
their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of
this Rule, the protection may be extended to the officers involved.

The Supreme Court shall accredit the persons and private institutions that shall extend temporary
protection to the petitioner or the aggrieved party and any member of the immediate family, in
accordance with guidelines which it shall issue.

The accredited persons and private institutions shall comply with the rules and conditions that may be
imposed by the court, justice or judge.

(b) Inspection Order. The court, justice or judge, upon verified motion and after due hearing, may order
any person in possession or control of a designated land or other property, to permit entry for the
purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or
operation thereon.

The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or
testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of
the aggrieved party.
If the motion is opposed on the ground of national security or of the privileged nature of the
information, the court, justice or judge may conduct a hearing in chambers to determine the merit of
the opposition.

The movant must show that the inspection order is necessary to establish the right of the aggrieved
party alleged to be threatened or violated.

The inspection order shall specify the person or persons authorized to make the inspection and the date,
time, place and manner of making the inspection and may prescribe other conditions to protect the
constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance,
unless extended for justifiable reasons.

(c) Production Order. The court, justice or judge, upon verified motion and after due hearing, may order
any person in possession, custody or control of any designated documents, papers, books, accounts,
letters, photographs, objects or tangible things, or objects in digitized or electronic form, which
constitute or contain evidence relevant to the petition or the return, to produce and permit their
inspection, copying or photographing by or on behalf of the movant.

The motion may be opposed on the ground of national security or of the privileged nature of the
information, in which case the court, justice or judge may conduct a hearing in chambers to determine
the merit of the opposition.

The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the
parties.

(d) Witness Protection Order. The court, justice or judge, upon motion or motu proprio, may refer the
witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit
Program, pursuant to Republic Act No. 6981.

The court, justice or judge may also refer the witnesses to other government agencies, or to accredited
persons or private institutions capable of keeping and securing their safety.

SEC. 15. Availability of Interim Reliefs to Respondent. Upon verified motion of the respondent and after
due hearing, the court, justice or judge may issue an inspection order or production order under
paragraphs (b) and (c) of the preceding section.

A motion for inspection order under this section shall be supported by affidavits or testimonies of
witnesses having personal knowledge of the defenses of the respondent.

SEC. 16. Contempt. The court, justice or judge may order the respondent who refuses to make a return,
or who makes a false return, or any person who otherwise disobeys or resists a lawful process or order
of the court to be punished for contempt. The contemnor may be imprisoned or imposed a fine.

SEC. 17. Burden of Proof and Standard of Diligence Required. The parties shall establish their claims by
substantial evidence.

The respondent who is a private individual or entity must prove that ordinary diligence as required by
applicable laws, rules and regulations was observed in the performance of duty.
The respondent who is a public official or employee must prove that extraordinary diligence as required
by applicable laws, rules and regulations wasobserved in the performance of duty.

The respondent public official or employee cannot invoke the presumption that official duty has been
regularly performed to evade responsibility or liability.

SEC. 18. Judgment. The court shall render judgment within ten (10) days from the time the petition is
submitted for decision. If the allegations in the petition are proven by substantial evidence, the court
shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the
privilege shall be denied.

SEC. 19. Appeal. Any party may appeal from the final judgment or order to the Supreme Court under
Rule 45. The appeal may raise questions of fact or law or both.

The period of appeal shall be five (5) working days from the date of notice of the adverse judgment.

The appeal shall be given the same priority as in habeas corpus cases.

SEC. 20. Archiving and Revival of Cases. The court shall not dismiss the petition, but shall archive it, if
upon its determination it cannot proceed for a valid cause such as the failure of petitioner or witnesses
to appear due to threats on their lives.

A periodic review of the archived cases shall be made by the amparo court that shall, motu proprio 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 lapse of two (2) years from notice
to the petitioner of the order archiving the case.

The clerks of court shall submit to the Office of the Court Administrator a consolidated list of archived
cases under this Rule not later than the first week of January of every year.

SEC. 21. Institution of Separate Actions. This Rule shall not preclude the filing of separate criminal, civil
or administrative actions.

SEC. 22. Effect of Filing of a Criminal Action. When a criminal 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 criminal
case.

The procedure under this Rule shall govern the disposition of the reliefs available under the writ of
amparo.

SEC. 23. Consolidation. When a criminal action is filed subsequent to the filing of a petition for the writ,
the latter shall be consolidated with the criminal action.

When a criminal action and a separate civil action are filed subsequent to a petition for a writ of
amparo, the latter shall be consolidated with the criminal action.
After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs
in the petition.

SEC. 24. Substantive Rights. This Rule shall not diminish, increase or modify substantive rights
recognized and protected by the Constitution.

SEC. 25. Suppletory Application of the Rules of Court. The Rules of Court shall apply suppletorily insofar
as it is not inconsistent with this Rule.

SEC. 26. Applicability to Pending Cases. This Rule shall govern cases involving extralegal killings and
enforced disappearances or threats thereof pending in the trial and appellate courts.

SEC. 27. Effectivity. This Rule shall take effect on October 24, 2007, following its publication in three (3)
newspapers of general circulation.

I. SPEEDY DISPOSATION OF CASES

Section 16, Art. III. All persons shall have the right to a speedy disposition of their cases before all
judicial, quasi-judicial, or administrative bodies.

Speedy Trial vs. Speedy Disposition of Cases

Speedy trial Speedy disposition of cases
Refers to trial phase only Refers to disposition of cases (All phases)
Criminal cases only Judicial, quasi-judicial or admin. Proceedings

· Periods for decision for courts (Sec. 15, Art. VIII)

· SC: 24 months from submission
· All lower collegiate courts: 12 months unless reduced by SC
· All other lower courts: 3 months

Periods for decision for Constitutional Commissions (Sec 7, Art. IX-A)

 60 days from date of submission for decision or resolution

Factors considered in determining whether the right is violated

1. Length of delay
2. Reason of delay
3. Assertion of the right or failure to assert it
4. Prejudice caused by delay

Remedy in case there has been unreasonable delay in resolution of a case:

Dismissal through mandamus

J. RIGHT AGAINST SELF-INCRIMINATION

Section 17, Art. III. No person shall be compelled to be a witness against himself.

Based on:
1. Humanitarian reasons – it is intended to prevent the State, with all its coercive powers, from
extracting from the suspect testimony that may convict him;

2. Practical reasons – a person subjected to such compulsion is likely to perjure himself for his own
protection

Applicable to:

· Criminal prosecutions, government proceedings, including civil actions and administrative or legislative
investigations

Transactional Immunity Statute – testimony of any person or whose possession of documents or other
evidence necessary or convenient to determine the truth in any investigation conducted is immune from
criminal prosecution for an offense to which such compelled testimony relates.

Use and Fruit Immunity Statute – prohibits the use of the witness' compelled testimony and its fruit in
any manner in connection with the criminal prosecution for an offense to which such compelled
testimony relates.

May be Claimed by:

1. Accused – at all times; there is a reasonable assumption that the purpose of his interrogation will be
to incriminate him

2. Witness – only when an incriminating question is asked, since the witness has no way of knowing in
advance the nature or effect of the question to be put to him

- He cannot invoke right to self-incrimination when:

a) The question is relevant and otherwise allowed even if the answer may tend to incriminate
him or subject him to civil liability
b) the question relates to past criminality for which the witness can no longer be prosecuted
c) he has been previously granted immunity under a validly enacted statute

· Only natural persons can invoke this right. Judicial persons are subject to the visitorial powers of the
state in order to determine compliance with the conditions of the charter granted to them.

Scope:

(1) Testimonial Compulsion

· In Villaflor v. Summers, since the “kernel of the privilege” was the prohibition of “testimonial
compulsion”, the Court was willing to compel a pregnant woman accused of adultery to submit to the
indignity of being tested for pregnancy. Being purely a mechanical act, it is not a violation of her
constitutional right against self-incrimination.

(2) Production of Documents, Papers and Chattels. Exception: when books of accounts are to be
examined in the exercise of police power and power of taxation.
· What is prohibited is the use of physical or moral compulsion to extort communication from the
witness or to otherwise elicit evidence which would not exist were it not for the actions compelled from
the witness.

· 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 the
right against self-incrimination. However, obtaining a sample of the handwriting of the accused would
violate this right if he is charged for falsification.

· The accused cannot be compelled to produce a private document in his possession which might tend to
incriminate him. However, a third person in custody of the document may be compelled to produce it.

Right May be Waived:

- Either:
a) Directly, or
b) By failure to invoke it PROVIDED the waiver is certain and unequivocal and intelligently and
willingly made.

Section 18 (1), Art. III. No person shall be detained solely by reason of his political beliefs and
aspirations.

J. RIGHT AGAINST INVOLUNTARY SERVITUDE

Section 18 (2), Art. III. No involuntary servitude in any form shall exist except as a punishment for a
crime whereof the party shall have been duly convicted.

Involuntary Servitude – the condition of one who is compelled by force, coercion, or imprisonment, and
against his will, to labor for another, whether he is paid or not.

Involuntary Servitude Includes

(1) Slavery –civil relation in which one man has absolute power over the life, fortune and liberty of
another;

(2) Peonage – a condition of enforced servitude by which the servitor is restrained of his liberty and
compelled to labor in liquidation of some debt or obligation, real or pretended, against his will

General Rule
No involuntary service in any form shall exist.

Exceptions

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

(Sec. 4, Art. II)
3. Naval enlistment – remain in service until the end of voyage so that the crew would not desert the
ship, making it difficult for the owners to recruit new hands to continue the voyage (Robertson vs
Baldwin)

4. Posse comitatus – in pursuit of persons who might have violated the law, the authorities might
command all male inhabitants of a certain age to assist them (US vs Pompeya)

5. Return to work order in industries affected with public interest (Kapisanan ng Manggagawa sa Kahoy
vs Gotamco)

6. Patria Potestas – unemancipated minors are obliged to obey their parents so long as they are under
parental power and to observe respect and reverence to them always (Art. 311, Civil Code)

US vs Pompeya An Act providing for the method by which the

people of the town may be called upon to render
assistance for the protection of the public and the
preservation of peace and good order is
constitutional. It was enacted in the exercise of the
police power of the state and does not violate the
constitutional prohibition on involuntary
servitude.
Pollock vs Williams No indebtedness warrants a suspension of the
right to be free from compulsory service, and no
state can make the quitting of work any
component of a crime, or make criminal sanctions
available for holding unwilling persons to labor.

K. CRUEL AND INHUMAN PUNISHMENT

Section 19, Art. III.
1. Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither
shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress
hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua.
2. The employment of physical, psychological, or degrading punishment against any prisoner or
detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be
dealt with by law.

When is a penalty “cruel, degrading and inhuman”?

(1) A penalty is cruel and inhuman if it involves torture or lingering suffering.

Ex. Being drawn and quartered.

(2) A penalty is degrading if it exposes a person to public humiliation. Ex. Being tarred and feathered,
then paraded throughout town.

Standards Used
(1) The punishment must not be so severe as to be degrading to the dignity of human beings.
(2) It must not be applied arbitrarily.
(3) It must not be unacceptable to contemporary society
(4) It must not be excessive, i.e. it must serve a penal purpose more effectively than a less severe
punishment would.

Excessive Fine

· A fine is excessive, when under any circumstance, it is disproportionate to the offense.

Note: Fr. Bernas says that the accused cannot be convicted of the crime to which the punishment is
attached if the court finds that the punishment is cruel, degrading or inhuman.
Reason: Without a valid penalty, the law is not a penal law.

L. NON IMPRISONMENT FOR DEBT

Section 20, Art. III. No person shall be imprisoned for debt or non-payment of a poll tax.

For humanitarian reasons… an added guaranty of the liberty of persons against their incarceration for
the enforcement of purely private debts because of their misfortune of being poor

Debt – any civil obligation arising from a contract, expressed or implied, resulting in any liability to pay in
money.

Scope of guaranty against imprisonment for non-payment of debt

· If an accused fails to pay the fine imposed upon him, this may result in his subsidiary imprisonment
because his liability is ex delicto and not ex contractu.

A FRAUDULENT debt may result in the imprisonment of the debtor if:

1. The fraudulent debt constitutes a crime such as estafa; and

2. The accused has been duly convicted.

POLL TAX

General Rule: Non-payment of taxes is punishable with imprisonment.

Exception: Failure to pay a poll tax

Poll tax – a specific sum levied upon every person belonging to a certain class without regard to his
property or occupation.

· A tax is not a debt since it is an obligation arising from law. Hence, its non-payment maybe
validly punished with imprisonment.

M. DOUBLE JEOPARDY
Section 21, Art. III. No person shall be twice put in jeopardy of punishment for the same offense. If an
act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to
another prosecution for the same act.

Double jeopardy – when a person was charged with an offense and the case was terminated by
acquittal or conviction or in any other manner without his consent, he cannot again be charged with the
same or identical offense.

Requisites of Double Jeopardy

1. valid complaint or information

2. filed before a competent court
3. to which defendant has pleaded, and
4. defendant was previously acquitted or convicted or the case dismissed or otherwise terminated
without his express consent.

Two (2) Kinds of Double Jeopardy

(1) When a person is put twice in jeopardy of punishment for the same offense (1st sentence of
Section 21)

(2) When a law and an ordinance punish the same act (2nd sentence of
Sec. 21)

Same Offense

Requisites for a valid defense of double jeopardy:

(1) First jeopardy must have attached prior to the second.

(2) The first jeopardy must have terminated.
(3) The second jeopardy must be for the same offense as that in the first.

When does jeopardy ATTACH: (1st requisite)

(a) A person is charged

(b) Under a complaint or information sufficient in form and substance to sustain a conviction

(c) Before a court of competent jurisdiction

(d) After the person is arraigned

(e) Such person enters a valid plea.

When does jeopardy NOT attach:

(a) If information does not charge any offense

(b) If, upon pleading guilty, the accused presents evidence of complete selfdefense, and the court
thereafter acquits him without entering a new plea of not guilty for accused.

(c) If the information for an offense cognizable by the RTC is filed with the MTC.

(d) If a complaint filed for preliminary investigation is dismissed.

When does first jeopardy TERMINATE: (2ND REQUISITE)

1) Acquittal
2) Conviction
3) Dismissal W/O the EXPRESS consent of the accused
4) Dismissal on the merits.

Examples of termination of jeopardy:

(a) Dismissal based on violation of the right to a speedy trial. This amounts to an acquittal.

(b) Dismissal based on a demurrer to evidence. This is a dismissal on the merits.

(c) Dismissal on motion of the prosecution, subsequent to a motion for reinvestigation filed by the
accused.

(d) Discharge of an accused to be a state witness. This amounts to an acquittal.

When can the PROSECUTION appeal from an order of dismissal:

(a) If dismissal is on motion of the accused. Exception: If motion is based on violation of the right to a
speedy trial or on a demurrer to evidence.

(b) If dismissal does NOT amount to an acquittal or dismissal on the merits

(c) If the question to be passed upon is purely legal.

(d) If the dismissal violates the right of due process of the prosecution.

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

What are considered to be the “SAME OFFENSE”:

(a) Exact identity between the offenses charged in the first and second cases.

(b) One offense is an attempt to commit or a frustration of the other offense.

(c) One offense is necessarily included or necessary includes the other.

· 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 bar the other so long as none of the exceptions apply.

Same Act

· 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 necessary that the offense be the same.

Supervening Facts

1) Under the Rules of Court, a conviction for an offense will not bar a prosecution for an offense which
necessarily includes the offense charged in the former information where:

(a) The graver offense developed due to a supervening fact arising from the same act or omission
constituting the former charge.

(b) The facts constituting the graver offense became known or were discovered only after the filing of
the former information.

(c) The plea of guilty to the lesser offense was made without the consent of the fiscal and the offended
party.

2) Under (1)(b), if the facts could have been discovered by the prosecution but were not discovered
because of the prosecution’s incompetence, it would not be considered a supervening event.

Effect of appeal by the accused

· If the accused appeals his conviction, he WAIVES his right to plead double jeopardy. The whole case will
be open to review by the appellate court. Such court may even increase the penalties imposed on the
accused by the trial court.

· In Almario v. CA, the Court held that the delays were not unreasonable; hence, there was no denial of
the right to speedy trial. Second, the dismissal was with the consent of the accused. Hence,
reinstatement did not violate the right against double jeopardy.

N. EX POST FACTO LAWS AND BILL OF ATTAINDER

Section 22, Art. III. No ex post facto law or bill of attainder shall be enacted.

Kinds of Ex Post Facto Laws

(1) One which makes an action done before the passing of the law, and which was innocent when done,
criminal, and punishes such action.

(2) One which aggravates the crime or makes it greater than when it was committed.

(3) One which changes the punishment and inflicts a greater punishment than that which the law
annexed to the crime when it was committed.
(4) One which alters the legal rules of evidence and receives less testimony than the law required at the
time of the commission of the offense in order to convict the accused.

(5) One which assumes to regulate civil rights and remedies only BUT, in effect, imposes a penalty or
deprivation of a right, which, when done, was lawful.

(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 a former conviction or acquittal, or a proclamation of amnesty. (In Re
Kay Villegas Kami)

Characteristics of Ex Post Facto Law

(a) Must refer to criminal matters

(b) Prejudicial to the accused
(c) Retroactive in application

· In Lacson v. Exec. Sec., the Court held that in general, ex post facto law prohibits retrospectivity of
penal laws. RA No. 8249 is not a penal law.... The contention that the new law diluted their right to a
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 8249 pertains only to matters of procedure, and being merely an
amendatory statute it does not partake the nature of ex post facto law.”

· 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. Exception: (Beazell v. Ohio) unless the changes operate only in limited and
unsubstantial manner to the disadvantage of the accused.

· In Bayot v. Sandiganbayan, the accused was convicted by the Sandiganbayan for estafa on May 30,
1980. Accused appealed. On March 16, 1982, BP Blg. 195 was passed authorizing suspension of public
officers against whom an information may be pending at any stage. On July 22, 1982, the court
suspended the accused. The Supreme 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 prohibition.

BILL OF ATTAINDER

Bill of attainder – is a legislative act which inflicts punishment without judicial trial. If the punishment be
less than death, the act is termed a bill of pains and penalties.” (Cummings v. Missouri)

(All Bills of Attainder are Ex Post Facto Laws)

Elements of Bill of Attainder

1. There must be a law.
2. The law imposes a penal burden on a named individual or easily ascertainable members of a group.
3. There is a direct imposition of penal burden without judicial trial.

O. PRIVACY OF COMMUNICATION
Section 3(1), Art. III. The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by
law.

Forms of Correspondences and Communication Covered

1. letters
2. messages
3. telephone calls
4. telegrams, and
5. the likes

Intrusion into the Privacy of Communication May Be Allowed

1. Upon lawful order of the court, or
2. When public safety or order requires otherwise as prescribed by law.

· When intrusion is made without a judicial order, it would have to be based upon a government
official's assessment that public safety and order demand such intrusion.
Public Order and Safety – the security of human lives, liberty, and property against the activities of
invaders, insurrectionists, and rebels.

· RA No. 4200 known as the Anti-Wiretapping Law provides penalties for specific violations of
private communication. Under Sec. 3 of the Act allows court-authorized taps, under specific
conditions for the crimes of treason, espionage, provoking war and disloyalty in case of war,
piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting
rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping.

P. RIGHT TO PRIVACY

· In Ople v. Torres, the right to privacy being a fundamental right, the government has the burden of
proof to show that a statute (AO no. 308 in this case) is justified by some compelling state interest and
that it is narrowly drawn.

“In no uncertain terms, we also underscores that the right to privacy does not bar all incursions into
individual privacy. The right is not intended to stifle scientific and technological advancements that
enhance public service and the common good. It merely requires that the law be narrowly focused.”
Intrusions into the right must be accompanied by proper safeguards and well-defined standards to
prevent unconstitutional invasions.

· 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 becomes ‘viable,’ that is, potentially able to live outside the mother's
womb.

(a) The Constitution does not explicitly mention any right to privacy but the Court has recognized that
such right does exist in the Constitution. The Court deemed abortion a fundamental right under the
United States Constitution, thereby subjecting all laws attempting to restrict it to the standard of strict
scrutiny. Where certain “fundamental rights” are involved, the Court has held that regulation limiting
these rights may be justified only by a “compelling state interest.”
(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 right to terminate her pregnancy at whatever time, in whatever way and
for whatever reason she alone chooses is NOT absolute. While recognizing the right to privacy, the Court
also acknowledges that some state regulation in areas protected by a right is appropriate. A state may
properly assert important interests in safeguarding health, in maintaining medical standards, and in
protecting potential life.

Q. WRIT OF HABEAS DATA

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 an unlawful act or omission of a public official or employee, or of a
private individual or entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved party.

· 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 on 22 January 2008. That Rule shall not diminish, increase or modify
substantive rights.
Constitutional Basis
Section 5(5), Art. VIII. Promulgate rules concerning the protection and enforcement of constitutional
rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the
integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and
inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same
grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special
courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

· The Rule takes effect on 2 February 2008, following its publication in three (3) newspapers of general
circulation.

Who may file a petition for the issuance of a writ of habeas data?

· General rule: The aggrieved party.

· Exceptions: In cases of extralegal killings and enforced disappearances, the petition may be filed by:

(1) Any member of the immediate family of the aggrieved party, namely: the spouse, children and
parents; or

(2) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree
of consanguinity or affinity, in default of those mentioned in the preceding paragraph.

Where can the petition be filed?

(1) Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction over
the place where the data or information is gathered, collected or stored, at the option of the petitioner.

(2) Supreme Court;

(3) Court of Appeals; or

(4) Sandiganbayan, when the action concerns public data files of government offices.

· No docket and other lawful fees shall be required from an indigent petitioner. The petition of the
indigent shall be docketed and acted upon immediately, without prejudice to subsequent submission of
proof of indigency not later than 15 days from the filing of the petition.

The verified written petition shall allege the following:

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

(b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or
security of the aggrieved party;

(c) The actions and recourses taken by the petitioner to secure the data or
information;

(d) The location of the files, registers or databases, the government office, and the person in charge, in
possession or in control of the data or information, if known;

(e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of
the database or information or files kept by the respondent. In case of threats, the relief may include a
prayer for an order enjoining the act complained of; and

(f) Such other relevant reliefs as are just and equitable.

When is the writ of habeas data issued?

Upon the filing of the petition, the court, justice or judge shall 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 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 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 for summary hearing of the petition which shall not be later
than ten (10) work days from the date of its issuance.

· 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 by the court, justice or judge for contempt without prejudice to other
disciplinary actions.

· The writ shall be served upon the respondent by the officer or person deputized by the court, justice or
judge who shall retain a copy on which to make a return of service. In case the writ cannot be served
personally on the respondent, the rules on substituted service shall apply.

· The respondent shall file a verified written return together with supporting affidavits within five (5)
work days from service of the writ, which period may be reasonably extended by the Court for justifiable
reasons.

Contents of Return
(a) The lawful defenses such as national security, state secrets, privileged communication,
confidentiality of the source of information of media and others;

(b) In case of respondent in charge, in possession or in control of the data or information subject of the
petition:

(i) a disclosure of the data or information about the petitioner, the nature of such data or information,
and the purpose for its collection;

(ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data or
information; and

(iii) the currency and accuracy of the data or information held; and

(c) Other allegations relevant to the resolution of the proceeding.

· When the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition
ex parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion
requires the petitioner to submit evidence.

· Instead of having the hearing in open court, it can be done in chambers when the respondent invokes
the defense that the release of the data or information in question shall compromise national security
or state secrets, or when the data or information cannot be divulged to the public due to its nature or
privileged character.

· The hearing on the petition shall be summary. However, the court, justice or judge may call for a
preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and
admissions from the parties.

· Upon its finality, the judgment shall be enforced by the sheriff or any lawful officer as may be
designated by the court, justice or judge within five (5) work days.

· When a criminal action has been commenced, no separate petition for the writ shall be filed, but the
reliefs under the writ shall be available by motion in the criminal case, and the procedure under this
Rule shall govern the disposition of the reliefs available under the writ of habeas data.

· When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas
data, the petition shall be consolidated with the criminal action. After consolidation, the procedure
under this Rule shall continue to govern the disposition of the reliefs in the petition.

· The introduction of the Writ of Habeas Data into Philippine Justice System complemented several writs
used in the Philippines. These writs which protect the rights of the individual against the state are as
follows:
· The Writ of Habeas Corpus – a writ ordering a person who detained another to produce the
body and bring it before a judge or court. Its purpose is to determine whether the detention is
lawful or not;
 · The Writ of Mandamus – a writ ordering a governmental agency to perform a ministerial
function;

· The Writ of Prohibition – a writ ordering a person to prohibit the commission of an illegal act;

· The Writ of Certiorari – a writ ordering a person to correct an erroneous act committed with
grave abuse of discretion; and

· The Writ of Amparo – a writ designed to protect the most basic right of a human being. These
are the right to life, liberty andsecurity guaranteed by the Constitution.

R. ACCESS TO PUBLIC INFORMATION

Section 7, Art. III. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be provided by law.

· 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 knowledgeably and intelligently.

Rights Guaranteed

1. Right to information on matters of public concern ; and

2. Corollary right of access to official records and documents.

· These are political rights that are available to citizens only (Bernas, Philippine Constitution, p. 85).

Limitations: “As may be provided by law”

Valmonte v Belmonte 1989 The people have a right to access official records
but they can’t compel custodians of official records
to prepare lists, abstracts, summaries and the like,
such not being based on a demandable legal right.

Then right to privacy belongs to the individual and

must be invoked by the individual. A public agency
like the GSIS cannot invoke the right to privacy.
Baldoza v Dimaano 1976 Judges cannot prohibit access to judicial records.
However, a judge may regulate the manner in
which persons desiring to inspect, examine or copy
records in his office, may exercise their rights.
Legaspi v Civil Service Commission Personal interest is not required in asserting the
1987 right to information on matters of public concern.
What matters constitute “public concern” should
be determined by the court on a case to case
basis.
Chavez v PCGG 1998 Public concern (def.) – writings coming into the
hands of public officers in connection with their
official functions Ill-gotten wealth is, by its nature,
a matter of public concern. Privileged
communication: (1) national security, (2) trade
secrets, (3) criminal matters pending in court,

Echegaray case SC held that making the Lethal Injection Manual

inaccessible to the convict was unconstitutional.

S. FREEDOM OF EXPRESSION

Freedom of Speech – “at once the instrument and the guaranty and the bright consummate flower of all
liberty.” (Wendell Philips)

Scope

· Freedom of Expression is available only insofar as it is exercised for the discussion of matters affecting
the public interest. Purely private interest matters do not come within the guaranty (invasion of privacy
is not sanctioned by the Constitution).

· covers ideas that are acceptable to the majority and the unorthodox view. (One of the functions of this
freedom is “to invite dispute” – US Supreme Court; “I may not agree with what you say, but I will defend
to the death your right to say it.” - Voltaire)

· The freedom to speak includes the right to silent. (This freedom was meant not only to protect the
minority who want to talk but also to benefit the majority who refuse to listen. - Socrates)

Importance

The ultimate good desired is better reached by a free trade in ideas – that the best test of truth is the
power of the thought to get itself accepted in the competition of the market; and that truth is the only
ground upon which their wishes safely can be carried out.

Modes of Expression

(a) Oral and written language

(b) Symbolisms (e.g. bended knee, salute to the flag, cartoons)

Elements of Freedom of Expression

(1) Freedom from prior restraint or censorship

(2) Freedom from subsequent punishment

Freedom From Previous Restraint or Censorship

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.

Censorship – conditions the exercise of freedom of expression upon the prior approval of the
government. Only those ideas acceptable to it are allowed to be disseminated.

· Censor, therefore, assumes the role of arbiter for the people, usually applying his own subjective
standards in determining the good and the not. Such is anathema in a free society.

· In New York Times v. United States, the Court held that prohibition of “prior restraint” is not absolute,
although any system of prior restraint comes to court bearing a heavy presumption against its
constitutionality.

· In Near v. Minnesota, the exceptions to the prohibition of “prior restraint is enumerated by the Court,
thus: “When a nation is at war, many things that might be said in time of peace are such a hindrance to
its effort .... No one would question but that government might prevent actual obstruction to its
recruiting service or the publication of sailing dates of transports or the number or location of troops....
The security of the community life may be protected against incitements to acts of violence and the
overthrow by force of orderly government.”

· In SWS v. Comelec, Sec. 1 of RA No. 9006, the Fair Election Act says that surveys affecting national
candidates shall not be published fifteen(15) days before an election and surveys affecting local
candidates shall not be published seven days before an election. The provision is challenged as violative
of freedom of expression. The Court held that as prior restraint, the rule is presumed to be invalid. The
power of the Comelec over media franchises is limited to ensuring “equal opportunity, time, space and
the right to reply” as well as to reasonable rates of charges for the use of media facilities for “public
information and forums among candidates.” Here the prohibition of speech is direct, absolute and
substantial. Nor does the rule pass the O'Brien test for content related regulation because (1) it
suppresses one type of expression while allowing other types such as editorials, etc. and (2) the
restriction is greater than what is needed to protect government interest because the interest can be
protected by narrower restriction such as subsequent punishment.

· In Re: Request for Radio-TV Coverage of the Estrada Trial, the Court held that the propriety of the
Estrada trial involves the weighing out of the constitutional guarantees of freedom of the press and the
right to public information, on the one hand, and the fundamental rights of the accused, on the other
hand, along with the constitutional power of a court to control its proceedings in ensuring a fair and
impartial trial... With the possibility of losing not only the precious liberty but also the very life of an
accused, it behooves all to make absolutely certain that an accused receives a verdict solely on the basis
of a just and dispassionate judgment...”

· The doctrine of freedom of speech was formulated primarily for the protection of “core speech,” i.e.,
speech which communicates political, social or religious ideas. Commercial speech, however, does not.

Grosjean vs American Press Co. There need not be total suppression; even
restriction of circulation constitutes censorship
Burgos vs Chief of Staff the search, padlocking and sealing of the offices of

Mutuc vs COMELEC
Sanidad vs COMELEC
But...
Gonzales vs COMELEC
Iglesia ni Cristo vs CA
Primicias vs Fugosos
National Press Club vs COMELEC
Metropolitan Mail and We Forum by military
authorities, resulting in the discontinuance of
publication of the newspapers, was held to be
prior restraint
the COMELEC prohibition against the use of taped
jingles in the mobile units used in the campaign
was held to be unconstitutional, as it was in the
nature of censorship
the Court annulled the COMELEC prohibition
against radio commentators or newspaper
columnists from commenting on the issues
involved in the scheduled plebiscite on the organic
law creating the Cordillera Autonomous Region as
an unconstitutional restraint on freedom of
expression
the Court upheld the validity of the law which
prohibited, except during the prescribed election
period, the making of speeches, announcements
or commentaries for or against the election of any
party or candidate for public office.
JUSTIFICATION: the inordinate preoccupation of
the people with politics tended toward the neglect
of the other serious needs of the nation and the
pollution of its suffrages.
The Board of Review for Motion Pictures and
Television (BRMPT) has the authority to review the
petitioner's television program. However, the
Board acted with grave abuse of discretion when it
gave an “X-rating” to the TV program on the
ground of “attacks against another religion.” Such
a classification can be justified only if there is a
showing that the tv program would create a clear
and present danger of an evil which the State
ought to prevent.
The respondent mayor could only reasonably
regulate, not absolutely prohibit, the use of public
places for the purpose indicated.
the Supreme Court upheld the validity of Sec.
11(b), RA 6646, which prohibited any person
making use of the media to sell or to give free of
charge print space or air time for campaign
or other political purposes except to the
COMELEC. This was held to be within the power of
the COMELEC to supervise the enjoyment or
utilization of franchises for the operation of
 media of communication and information, for the
purpose of ensuring equal opportunity, time and
space, and the “right to reply,” as well as uniform
and reasonable rates of charges for the use of such
media facilities.
Osmeňa vs COMELEC SC reaffirmed validity of RA 6646 as a legitimate
exercise of police power. The regulation is
unrelated to the suppression of speech, as any
restriction on freedom of expression occasioned
thereby is only incidental and no more than is
necessary to achieve the purpose of promoting
equality.
NOTE: This is not inconsistent with the ruling in
PPI vs COMELEC, because in the latter, SC simply
said that COMELEC cannot procure print space
without paying just compensation.

Adiong vs COMELEC COMELEC's resolution prohibiting the posting of

decals, and stickers in mobile units like cars and
other moving vehicles was declared
unconstitutional for infringement of freedom of
expression. Besides, the constitutional objective of
giving the rich and poor candidates' equal
opportunity to inform the electorate is not
violated by the posting of decals and stickers on
cars and other vehicles.
“Overbreadth doctrine” = prohibits the
government from achieving its purpose by means
that weep unnecessarily broadly, reaching
constitutionally protected as well as unprotected
activity; the government has gone too far; its
legitimate interest can be satisfied without
reaching so broadly into the area of protected
freedom.
Gonzales vs petitioner questioned the classification of the
katigbak movie as “for adults only.” the petition was
dismissed because the Board did not commit grave
abuse of discretion.

Freedom From Subsequent Punishment

Section 18(1), Art. III. No person shall be detained solely by reason of his political beliefs and
aspirations.

· Without this assurance, the individual would hesitate to speak for 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.
· Not absolute; subject to police power and may be regulated (freedom of expression does not cover
ideas offensive to public order)

Right of students to free speech in school premises not absolute

General Rule: a student shall not be expelled or suspended solely on the basis of articles he has written
Exception: when the article materially disrupts class work or involves substantial disorder or invasion of
rights of others, the school has the right to discipline its students (in such a case, it may expel or suspend
the student)

Tests of valid governmental interference

(criteria in determining the liability of the individual for ideas expressed by him) :

1. Clear and present danger rule

2. Dangerous tendency doctrine
3. Balance of interest test

1. Clear and Present Danger Rule – when words are used in such circumstance and of such nature as to
create a clear and present danger that will bring about the substantive evil that the State has a right to
prevent. (As formulated by Justice Holmes in Schenck v. United States)

Clear – causal connection with the danger of the substantive evil arising from the utterance

Present – time element; imminent and immediate danger (the danger must not only be probable but
also inevitable). (Gonzales v. Comelec)

· In ABS-CBN v. Comelec, the Comelec banned “exit polls” in the exercise of its authority to regulate the
holders of media franchises during the lection period. It contends that “an exit poll has the tendency to
sow confusion considering the randomness of selecting interviewees.... However, the Court said that
exit polls constitute an essential part of the freedoms of speech and of the press. Hence, the Comelec
cannot ban totally in the guise of of promoting clean, honest, orderly and credible elections. The ban
does not satisfy the clear and present danger rule because the evils envisioned are merely speculative.

Terminiello vs City of · (speech inside an auditorium with 800 persons)

Chicago · speech is often provocative and challenging.
hence, “fighting words” are not sufficient to
convict a person absent a clear and present danger
of a serious substantive evil
Primicias vs Fugosos The respondent mayor could only reasonably
regulate, not absolutely prohibit, the use of
public places for the purpose indicated.
· the condition of Manila at that time did not
justify the mayor's fears. there was no clear and
present danger.
· decided in 1947
Navarro vs Villegas (compare with Primicias case)
 SC sustained respondent mayor's act of refusing to
issue a permit enabling students to hold a public
rally. Mayor feared the rally would result to public
disorder.
- decided in 1970
Reyes vs Bagatsing the denial of a permit to hold a public rally was
invalid as there was no showing of the probability
of a clear and present danger of an evil that might
arise as a result of the meeting. The burden of
proving such eventually rests on the Mayor.

2. Dangerous Tendency Doctrine – if the words uttered create a dangerous tendency of an evil which
the State has the right to prevent.(Cabansag v. Fernandez)

· Justice Holmes, critique of this doctrine: Every idea is an incitement. If believed, it is acted on unless
some other belief outweighs it, or some failure of energy stifles the movement at its birth.

Bayan vs Executive Secretary Ermita (f) the Calibrated Pre-emptive Response Policy is
null and void. Respondents are enjoined from
using it and to strictly observe the requirements of
maximum tolerance.
Cabansag vs Fernandez It is not necessary that some definite or immediate
acts of force or violence be advocated. It is
sufficient that such acts be advocated in general
terms. A mere tendency toward the evil was
enough.
People vs Perez Accused declared: “The Filipinos like myself must
use bolos for cutting off (Governor- General)
Wood's head for having recommended a bad thing
for the Filipinos, for he has killed our
independence.” He was sentenced to jail.

3. Balance of Interest Test – when particular conduct is regulated in the interest of public order, and the
regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to
determine which of the two conflicting interests demands the greater protection under the
circumstances presented. (American Communications Association v. Douds)

CLEAR AND PRESENT DANGER
RULE
liberty is preferred
DANGEROUS TENDENCY RULE BALANCE OF INTEREST RULE
Authority is preferred the issue is resolved in the light
of the peculiar circumstances
obtaining in each particular case

· In Mutuc v. Comelec, the preferred freedom of expression calls all the more the utmost respect when
what may be curtailed is the dissemination of information to make more meaningful the equally vital
right of suffrage.
When faced with border line situations where freedom (of expression) to speak & freedom to know (to
information) are invoked against (vs.) maintaining free and clean elections- the police, local officials and
COMELEC should lean in favor of freedom.

For in the ultimate analysis, the freedom of the citizen and the State’s power to regulate are NOT
ANTAGONISTIC.

There can be no free and honest elections if in the efforts to maintain them, the freedom to speak and
the right to know are unduly curtailed.

We examine the limits of regulation. J. Feliciano shows that regulation of election campaign activity may
not pass the test of validity if:
· It is too general in its terms
· Not limited in time and scope in its application
· It if restricts one’s expression of belief in a candidate or one’s opinion of his or her qualifications,
· If it cuts off the flow of media reporting
· If the regulatory measure bears no clear and reasonable nexus with the constitutionally sanctioned
objective.

The regulation strikes at the freedom of an individual to express his preference and, by displaying it on
his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the car
owner agrees to have it placed in his private vehicle, the expression becomes a statement by the owner,
primarily his own and not of anybody else.

· The general rule for a speech to be considered libelous or defamatory is:

Libel = falsity + actual malice (uttered in full knowledge of its falsity or with reckless disregard)

Exemption: When the subject of the supposed libelous or defamatory material is a public officer.
Defamatory words may be uttered against them and not be considered libelous. The reason is that 1)
they asked for it (“they voluntarily thrust themselves into the public eye and therefore should not be
thin-skinned”); 2) it’s a matter of public interest; and 3) public figures have the opportunity and
resources to rebut whatever is said against them. (Policarpio vs Manila Times); ( New York Times vs
Sullivan)

· In New York Times v. Sullivan, The New York Times is protected under the freedom of speech in
publishing paid advertisement, no matter if it contained erroneous claims and facts. Said publication
was not “commercial” in the sense that it communicated information, expressed opinion, recited
grievances, protested claimed abuses, and sought a financial support on behalf of a movement. That the
Times was paid for publishing the advertisement is as immaterial as the fact that newspapers and books
are sold.

Newspapers do not forfeit the protection they enjoy under speech freedom just because they publish
paid advertisements. Otherwise, newspapers will be discouraged from carrying “editorial
advertisements” and so might shut off an important outlet for the promulgation of information and
ideas by persons who do not themselves have access to publishing facilities.
On errors: “Some degree of abuse is inseparable from the proper use of every thing; and in no instance
is this truer than that of the press.” Erroneous statement is inevitable in free debate.

Moreover, criticism of official conduct does not lose its constitutional protection merely because it
effective criticism and hence diminishes their official reputations. Presence of clear and present danger
of substantive evil must be proved. Actual Malice needs to be proved if a public official wants to recover
damages for a defamatory falsehood relating to his official conduct. “Even a false statement may be
deemed to make a valuable contribution to public debate since it brings about the clearer perception
and livelier impression of truth, produced by its collision with error.”

· In Gonzales v. Kalaw-Katigbak, Kapit sa Patalim was classified as “For Adults Only” by the MTRCB and
was suggested to have certain portions cut/ deleted.

Held: MTRCB do not have the power to exercise prior restraint. The power of the MTRCB is limited to
the classification of films.

The test to determine whether a motion picture exceeds the bounds of permissible exercise of free
speech and, therefore should be censored, is the clear and present danger test.

Assembly and Petition

· The right to assemble is not subject to prior restraint and may not be conditioned upon the prior
issuance of a permit or authorization from the government authorities. However, the right must be
exercised in such a way that it will not prejudice the public welfare. (De la Cruz v. Court of Appeals)

· If assembly is to be held at a public place, permit for the use of such place, and not for the assembly
itself, may be validly required. Power of local officials is merely for regulation and not for prohibition.
(Primicias v. Fugoso)

· Permit for public assembly is not necessary if meeting is to be held in: a private place; the campus of a
government-owned or operated educational institution; and freedom park. (B.P. Blg. 880 - “The Public
Assembly Act of 1985')

· In JBL Reyes v. Bagatsing, retired J. JBL Reyes sought a permit from the City of Manila to hold a march
and rally on Oct 26, 1983 2-5pm from Luneta to gates of US Embassy, and was denied by the Mayor due
to Vienna Convention Ordinance and fear of subversives may infiltrate the ranks of the demonstrators.

Held: no justifiable ground to deny permit because Bill of Rights will prevail over Vienna Ordinance
should conflict exist (none proven because 500m not measured from gate to US Embassy proper) and
fear of serious injury cannot alone justify suppression of free speech and assembly- only clear and
present danger of substantive evil.

Notes: the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful
assembly…

Tanada vs Bagatsing SC sustained the petitioner's motion compelling

the mayor of Manila to issue a permit to hold a
rally, but changed the meeting place to Ugarte
 Field, a private park
Malabanan vs Ramento (several students were suspended for 1 year for
conducting demonstration in the premises of a
university outside the area permitted by the
school authorities) SC emphasized that the
students did not shed their constitutional rights to
free speech at the schoolhouse gate, and
permitted the students to re-enroll and finish their
studies.
Villar vs TIP (several students were barred from re-enrollment
for participating in demonstrations) while the
Court upheld the academic freedom of institutions
of higher learning, which includes the right to set
academic standards to determine under what
circumstances failing grades suffice for expulsion
of students, it was held that this right cannot be
utilized to discriminate against those who exercise
their constitutional rights to peaceful assembly.
Non vs Dames SC abandons its ruling in Alcuaz vs PSBA (that
enrolment of a student is a semester-to-semester
contract and the school may not be compelled to
renew the contract) upholding the primacy of
freedom of expression, because the students do
not shed theur constitutionally protected rights at
the school
gate.
PBM Employees Assoc vs PBM right to free assembly and petition prevails over
economic rights.

Tests of a lawful assembly

(1) Purpose Test

· ideally, the test should be the purpose for which the assembly is held, regardless of the auspices under
which it is organized

(2) Auspices Test

· Evengelista vs Earnshaw: the mayor of Manila prohibited the members of the Communist Party from
holding any kind of meeting, revoking all permits previously granted by him on the ground that the party
had been found (by the fiscal's office) to be an illegal association.

· In People v. Bustos, Bustos and several people sent complaint letters via counsel against Justice of
Peace Roman Punsalan, who charged them with libel.

Held: Bustos and the others were acquitted,

Ratio: the guarantees of free speech and a free press include the right to criticize judicial conduct. And
these people did so in proper channels without undue publicity, believing they were right.
Right of Association
Section 8, Art. III. The right of the people, including those employed in the public and private sectors,
to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

The Right of Association is deemed embraced in freedom of expression because the organization can be
used as a vehicle for the expression of views that have a bearing on public welfare.

SSS Employees Assoc vs CA right to organize does not carry with it right to
strike
Victoriano vs Elizalde Rope Workers' Union
Occena vs COMELEC right of association was not violated where
political parties were prohibited from participating
in the barangay elections to insure the non-
partisanship of the candidates.
In re Edillon Bar integration does not compel the lawyer to
associate with anyone. Integration does not make
a lawyer a member of any group of which he is not
already a member.

T. OBSCENITY CASES

US vs Kottinger SC acquitted accused who was charged of having

offered for sale pictures of half-clad members of
non-Christian tribes, holding that he had only
presented them in their native attire
People vs Go Pin Accused was convicted for exhibiting nude
paintings and pictures, notwithstanding his claim
that he had done so in the interest of art. SC,
noting that he has charged admission fees to the
exhibition, held that his purpose was commercial,
not merely artistic.
Pita vs CA SC declared that the determination of what is
obscene is a judicial function.
Miller vs California Test of Obscenity:
· whether the average person, applying
contemporary community standards, would
find that the work, taken as a whole, appeals to
the prurient interest
· whether the work depicts, in a patently
offensive way, sexual conduct specifically
defined by the applicable law
· whether the work, taken as a whole, lacks
serious literary, artistic, political or scientific
value
Justice Douglas, dissent: I do not think we, the
 judges, were ever given the constitutional power
to make definitions of obscenity. Obscenity is a
hodgepodge.
- The Courts should not apply a national standard but the standard of the
community in which the material is being tested.

· In Reno v. ACLU, Communications Decency Act seek to protect minors from obscenity on the internet.
· Held: overbroad, vague, unconstitutional.
· Notes: Sexual expression which is indecent but not obscene is protected by the First Amendment.

The internet is not an “invasive” medium because it requires a series of affirmative steps more
deliberate and directed than merely turning a dial (tv or radio).

There is no effective way to determine the identity or the age of a user who is accessing material
through email, mail exploders, newsgroups or chat rooms.

The Community Standard as applied to the internet means that any communication available to a
nationwide audience will be judged by the standards of the community most likely to be offended by
the message. The effect of CDA is such that when a site is blocked for being “indecent” or “patently
offensive” the remaining content even if not indecent cannot be viewed anymore. Imposition of
requirements (adult identification number or credit card) would bar adults who do not have a credit
card and lack the resources to obtain one from accessing any blocked material. It burdens
communication among adults.

The CDA is punitive, a criminal statute. The CDA is a content- based blanket restriction on speech, and as
such, cannot be properly analyzed as a form of time, place and manner regulation.

· The CDA was replaced with Child Online Protection Act, 1. The scope had been limited to material
displayed only on the world wide web. Chat and email were not included. The classification of content
was limited as “harmful to minors” using the Miller V California Test. So, it was upheld by the Supreme
Court.

Notes: the Court’s Jurisprudence teaches that it is the publisher’s responsibility to abide by that
community’s standards.

The fact that distributors of allegedly obscene materials may be subjected to varying community
standards in the various federal judicial districts into which they transmit the materials does not render
a federal statute unconstitutional.

- Criticism of Official Conduct

Lagunzad vs Sotto Vda. de Gonzales
Ayer Productions vs Judge Capulong
the Court granted the petition to restrain the
public exhibition of the movie “Moises Padilla
Story,” because it contained fictionalized
embellishments. Being a public figure does not
destroy one's right to privacy.
the tribunal upheld the primacy of freedom of
expression over Enrile's “right to privacy,” because
 Enrile was a public figure and a public figure's right
to privacy is narrower than that of an ordinary
citizen. Besides, the movie “Four Days of
Revolution (sabi ni Cruz)” / “A Dangerous Life
(sabi ni Nachura)” / “The Four Day Revolution
(sabi sa case)” would not be historically faithful
without including therein the participation of
Enrile in the EDSA revolution.
US vs Bustos SC compared criticism of official conduct to a
“scalpel that relieves the abscesses of officialdom”
People vs Alarcon newspaper publications tending to impede,
obstruct, embarrass or influence the courts in
administering justice in a pending suit or
proceeding constitutes criminal contempt which is
summarily punishable by the courts.
In re Jurado a publication that tends to impede, embarrass or
obstruct the court and constitutes a clear and
present danger to the administration of justice is
not protected by the guarantee of press freedom
and is punishable by contempt. It is not necessary
that publication actually obstructs the
administration of justice, it is enough that it tends
to do so.
In re Sotto a senator was punished for contempt for having
attacked a decision of SC which he called
incompetent and narrow-minded, and announcing
that he would file a bill for its reorganization
In re Tulfo Tulfo's “Sangkatutak na Bobo” column was held
contumacious. Freedom of the press is
subordinate to the decision, authority and
integrity of the judiciary and the proper
administration of justice.
In re Laureta a lawyer was held in contempt and suspended
from the practice of law for wrting individual
letters to members of the SC division that decided
a case against his client, arrogantly questioning
their decision
Zaldivar vs a member of the Bar who imputed charges of
Sandiganbayan improper influence, corruption and other
misdeeds to members of the Supreme Court was
suspended from the practice of law as “neither the
right of free speech nor the right to engage in
political activities can be so construed or extended
as to permit any such liberties to a member of the
bar.”
U. FREEDOM OF RELIGION
Section 5, Art. III. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious test shall be required for
the exercise of civil or political rights.

Religion defined

· “any specific system of belief, worship, conduct, etc., often involving a code of ethics and philosophy”
(defined by Cruz)

· In Aglipay vs Ruiz religion is defined as “a profession of faith to an active power that binds and elevates
man to his Creator.

Two Guarantees Contained Section 5, Art. III of the Constitution

(1) Non-establishment clause

(2) Free exercise of religious profession and worship

1. Non-establishment Clause

· reinforces Sec. 6, Art. II on the separation of church and State

· other provisions which support this: Sec 2(5), Art. IX-C [a religious sect or denomination cannot be
registered as a political party], Sec 5(2), Art. VI [no sectoral representative from the religious sector], and
Sec 29 (2), Art. VI [prohibition against the use of public money or property for the benefit of any religion,
or of any priest, minister or ecclsiastic], Sec. 28 (3), Art. VI [exemption from taxation of properties
actually, directly and exclusively used for religious purposes, Sec 4(2), Art XIV [citizenship requirement of
ownership of educational institutions except those owned by 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]

Scope: The State

(a) cannot set up a church;

(b) cannot pass laws which aid one religion, all religions or prefer one over another;
(c) cannot influence a person to go to or remain away from church against his will; nor
(d) force him to profess a belief or disbelief in any religion.

Rationale:

· to delineate boundaries between the two institutions; and

· to avoid encroachment by one against the other.
· A union of Church and State would either:
◦ tend to destroy government and to degrade religion; or
◦ result in a conspiracy because of its composite strength

· separation of church and state is not a wall of hostility

· The Government is neutral. It protects all, but prefers none and disparages none.
· Freedom of religion includes freedom from religion; the right to worship includes right not to worship

Two values sought to be protected by the non-establishment clause:

(1) Voluntarism – the growth of a religious sect as a social force must come from the voluntary support
of its members because of the belief that both spiritual and secular society will benefit if religions are
allowed to compete on their own intrinsic merit without benefit of official patronage.

(2) Insulation of the political process from interfaith dissension – voluntarism cannot be achieved
unless the political process is insulated from religion and unless religion is insulated politics.

Engel vs Vitale recitation by students in public schools in New

York of a prayer composed by the Board of
Regents was unconstitutional
Everson vs Board of Education US Supreme Court sustained the law providing free
transportation for all schoolchildren without
discrimination, including those attending parochial
schools
Board of Education vs Allen US Supreme Court sustained the law requiring the
petitioner to lend textbooks free of charge to all
students from grades 7-12, including those
attending private schools
In Everson and Allen, the government aid was given directly to the student and parents, not to the
church-related school
Adong vs Cheong Seng Gee in line with the constitutional principle of equal
treatment of all religions, the State recognizes the
validity of marriages performed in conformity with
the rites of Mohammedan religion
Rubi vs Provincial Board the expression “non-Christian” in “non-Christian
tribes” was not meant to discriminate. It refers to
degree of civilization, not to the religious belief.
Islamic Da'wah Council of the Philippines vs Office by arrogating to itself the task of issuing halal
of Exec. Sec. certifications, the State has, in effect, forced
Muslims to accept its own interpretation of the
Qur'an and Sunna on halal food.
· Intramural Religious Dispute – outside the jurisdiction of the secular authorities

Gonzales vs Archbishop of Manila where a civil right depends upon some matter
pertaining to ecclesiastical affairs, the civil tribunal
tries the civil right and nothing more.
Fonacier v CA where the dispute involves the property rights of
the religious group, or the relations of the
members where the property rights are involved,
the civil courts may assume jurisdiction.

2. Free Exercise Clause

Two Aspects of Free Exercise Clause:

1. Freedom to Believe

(a) absolute
(b) includes not to believe
(c) “everyone has a right to his beliefs and he may not be called to account because he cannot prove
what he believes”

2. Freedom to Act According to One's Beliefs

(a) happens when the individual externalizes his beliefs in acts or omissions

(b) subject to regulation; can be enjoyed only with proper regard to rights of others

(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

German vs Barangan SC found that petitioners were not sincere in

their profession of religious liberty and were
using it merely to express their opposition to
the government
Ebralinag vs division SC reversed Gerona vs Sec. of Educ. , and
Superintendent of Schools of upheld the right of petitioners to refute to
Cebu salute the Philippine flag on account of their
religious scruples. To compel students to
take part in a flag ceremony when it is against
their religious beliefs will violate their religious
freedom.
People vs Zosa invocation of religious scruples in order to avoid
military service was brushed aside by the SC
Victoriano vs Elizalde Rope Workers Union SC upheld the validity of RA 3350, exempting
members of a religious sect from being

American Bible Society vs City of Manila
Tolentino vs Sec. of Finance
compelled to join a labor union
the constitutional guarantee of free exercise
carries with it the right to disseminate information,
and any restraint of such right can be justified only
on the ground that there is a clear and present
danger of an evil which the State has the right to
prevent; Hence, City ordinance imposing license
fees to on sale is inapplicable to the society
the free exercise clause does not prohibit imposing
a generally applicable sales and use tax on the sale
of religious materials; the registration fee is not
imposed for the exercise of a privilege, but only for
the purpose of defraying part of the cost of
registration

· Compelling State Interest test [Estrada vs Escritor]

· the constitution's religion clause's prescribe not a strict bu abenevolent neutrality (which recognizes
that government mustpursue its secular goals and interests, but at the same time, strive to uphold
religious liberty to the greatest extent possible within flexible constitutional limits

· benevolent neutrality could allow for accomodation morality based on religion provided it does not
offend the compelling state interest test.

· two steps (as regards the test):

▪ inquire whether respondent's right to religious freedom has been burdened; and
▪ ascertain respondent's sincerity in her religious belief.

· In Centeno vs Villalon-Pornillos, the Court held that solicitiations for religious purposes requires not a
prior permit from DSWD as it is not included in solicitations for “charitable or public welfare purposes.”

Religious Tests

· Purpose: to stop government's clandestine attempts to prevent a person from exercising his civil of
political rights because of his religious beliefs.

· In Pamil v. Teleron, Sec. 2175 of the Revised Adminsitrative Code is questioned whether or not it is
consistent with the religious clause of the Constitution. Said Code disqualifies an “ecclesiastic” from
being elected or appointed to a municipal office. Seven Justices voted to consider this a prohibited
“religious test.” Five justices said it is not a religious test but a safeguard against the constant threat of
union of Church and State that has marked the Philippine history. (Hence, since the majority vote
needed under the 1973 Constitution to nullify a statute was not reached, thedisqualification remains
enforceable.)

People vs Zosa invocation of religious scruples in order to avoid

military service was brushed aside by the SC
V. RIGHT TO TRAVEL

Section 6, Art. III. The liberty of abode and of changing the same within the limits prescribed by law
shall not be impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may be provided
by law.

Liberty Guaranteed by Sec. 6 Art. III

1. freedom to choose and change one's place of abode; and
2. freedom to travel both within the country and outside

Limitations
· Liberty of Abode – “upon lawful order of the court”
· Right to Travel – “national security, public safety or public health as may be provided by law”

Caunca vs Salazar 82 Phil 851
Rubi vs Provincial Board of Mindoro 1919
Villavicencio vs Lukban 1919
Salonga vs Hermoso 97 SCRA 121
Lorenzo vs Dir. of Health1927
Manotok vs CA 1986
Whether a maid had the right to transfer to
another residence even if she had not paid yet the
amount advances by an employment agency:
Yes. The fortunes of business cannot be controlled
by controlling a fundamental human freedom.
Human dignity and freedom are essentially
spiritual – inseparable from the idea of eternal.
Money, power, etc. belong to the ephemeral and
perishable.
The respondents were justified in requiring the
members of certain non-Christian tribes to reside
in a reservation, for their better education,
advancement and protection. The measure was a
legitimate exercise of police power.
Prostitutes, despite being in a sense lepers, are not
chattels but Philippine citizens, protected by the
same constitutional guarantee of freedom of
abode. They may not be compelled to change their
domicile in the absence of a law allowing such.
the case became moot and academic when the
permit to travel abroad was issued before the case
could be heard.
Laws for the segregation of lepers have been
provided the world over and is supported by high
scientific authority. Such segregation is premised
on the duty to protect public health.
Bail posted in a criminal case, is a valid restriction
on the right to travel. By its nature, it may serve as
a prohibition on an accused from leaving the
 jurisdiction of the Philippines where orders of
Philippine courts would have no binding force.
Marcos vs Manglapus 1989 The liberty of abode and the right to travel
includes the right to leave, reside and travel within
one’s country but it does not include the right to
return to one’s country.
NOTE: Court warned that this case should not
create a precedent because Marcos was a class in
himself.
Philippine Association of Service Exporters vs Right to travel may be impaired in the interest of
Drilon national security, public health or public order, as
1988 may be provided by law.
An order temporarily suspending the deployment
of overseas workers is constitutional for having
been issued in the interest of the safety of OFWs,
as provided by the Labor Code.

by PORFERIO JR. and MELFA SALIDAGA

CODES AND NOTES ON PUBLIC INTERNATIONAL LAW
NOTES ON PUBLIC INTERNATIONAL LAW

CHAPTER 1
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 of nations” 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, pacta sunt servanda,
and estoppel).

Distinction of Public International Law with Municipal Law

Municipal Law
1. Issued by a political superior for observance by 1. Not imposed upon but simply adopted by states
those under its authority;
2. Consists mainly of enactments from the law-
making authority of each state;
3. Regulates the relations of individuals among
themselves or with their own states;
4. Violations are redressed through local
administrative and judicial processes; and,
5. breaches generally entail only individual
responsibility.
Public International Law
as a common rule of action among themselves;
2. derived not from any particular legislation but
from such sources as international customs,
international conventions and the general
principles of law;
3. Applies to the relations inter se of states and
other international persons;
4. Questions are resolved through state-to-state
transactions ranging from peaceful methods like
negotiation and arbitration to the hostile
arbitrament of force like reprisals and even war;
and,
5. responsibility of infractions is usually collective
in the sense that it attaches directly to the state
and not to its nationals.

Public International Law in Relation to Municipal Law

In the paquete Habana, Justice Gray said: “the law of nations, although not specially adopted by the
Constitution or any municipal act, is essentially a part of the law of the land.”

Doctrine of Incorporation – the rules of international law form part of the law of the land and no further
legislative action is needed to make such rules applicable in the domestic sphere. (Sec. of Justice v.
Lantion GRN 139465, Jan. 18, 2000)

This doctrine is followed in the Philippines as embodied in Art. II, Sec. 2 of the 1987 Constitution which
provides that: “The Philippines…adopts the generally accepted principles of international law as part of
the law of the land…” However, no primacy is implied.

It should be presumed that municipal law is always enacted by each state with due regard for and never
in defiance of the generally accepted principles of international law. (Co Kim Chan v. Valdez Tan Keh).

It is a settled principle of international law that a sovereign cannot be 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
Guatemala).

Constitution v. Treaty

Generally, the treaty is rejected in the local forum but is upheld by international tribunals as
ademandable obligation of the signatories under the principle of pacta sunt servanda.

Pacta Sunt Servanda – international agreements must be performed in Good Faith. A treaty
engagement is not a mere moral obligation but creates a legally binding obligation on the parties. A
state which has contracted a valid international obligation is bound to make in its legislation such
modifications as may be necessary to ensure the fulfillment of the obligations undertaken.

The Philippine Constitution however contains provisions empowering the judiciary to annul treaties
thereby establishing the primacy of the local law over the international agreement.

Art. X, Sec. 2(2) provides that “all cases involving the constitutionality of any treaty, executive or law
shall be heard and decided by the Supreme Court en banc, and no treaty, executive agreement or law
may be declared unconstitutional without the concurrence of ten justices.”

The Constitution authorizes the nullification of a treaty not only when it conflicts with the Constitution
but also when it runs counter to an act of Congress. (Gonzales v. Hechanova).

Basis of Public International Law

Three theories on this matter:

1. The Naturalist – under this theory, there is a natural and universal principle of right and wrong,
independent of any mutual intercource or compact, which is supposed to be discovered and recognized
by every individual through the use of his reason and his conscience.
2. The Positivist – under this theory, the binding force of 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.

3. The Eclectics or Groatians – this theory offers both the law of nature and the consent of states as the
basis of international law. It contends that the system of international law is based on the “dictate of
right reason” as well as “the practice of states.”

Sanctions of Public International Law

Sanctions – the compulsive force of reciprocal advantage and fear of retaliation.

1. The inherent reasonableness of international law that its observance will redound to the welfare of
the whole society of nations;

2. The normal habits of obedience ingrained in the nature of man as a social being;

3. To project an agreeable public image in order to maintain the goodwill and favorable regard of the
rest of the family of nations;

4. The constant and reasonable fear that violations of international law might visit upon the culprit the
retaliation of other states; and,

5. The machinery of the United Nations which proves to be an effective deterrent to international
disputes caused by disregard of the law of nations.

Enforcement of Public International Law

States are able to enforce international law among each other through international organizations or
regional groups such as the United Nations and the Organization of American States. These bodies may
adopt measures as may be necessary to compel compliance with international obligations or vindicate
the wrong committed.

Functions of Public International Law

1. To establish peace and order in the community of nations and to prevent the employment of force,
including war, in all international relations;

2. To promote world friendship by levelling the barriers, as of color or creed;

3. To encourage and ensure greater international cooperation in the solution of certain common
problems of a political, economic, cultural or humanitarian character; and,

4. To provide for the orderly management of the relations of states on the basis of the substantive rules
they have agreed to observe as members of the international community.

Distinctions with Other Concepts

International morality or ethics – embodies those principles which govern the relations of states from
the higher standpoint of conscience, morality, justice and humanity.
International diplomacy – relates to the objects of national or international policy and the conduct of
foreign affairs or international relations.
International administrative law – that body of laws and regulations created by the action of
international conferences or commissions which regulate the relations and activities of national and
international agencies with respect to those material and intellectual interests which have received an
authoritative universal recognition.

CHAPTER 2
THE INTERNATIONAL COMMUNITY

International Community – the body of juridical entities which are governed by the law of nations.

Composition of International community:

1. State
2. United Nations
3. the Vatican City
4. Colonies and dependencies
5. Mandates and trust territories
6. International administrative bodies
7. Belligerent communities
8. Individuals

1. States
State – a group of people living together in a definite territory under an independent government
organized for political ends and capable of entering into international relations. Some writers no loner
recognized the distinction between state and nation, pointing out that these two terms are now used in
an identical sense. Nevertheless, a respectable number of jurists still hold that the state is a legal
concept, the nation is only a racial or ethnic concept.

Elements of A State
1. People
2. Territory
3. Government
4. Sovereignty

A. People – the inhabitants of the State.

People must be numerous enough to be self-sufficing and to defend themselves, and small enough to be
easily administered and sustained. They are aggregate of individuals of both sexes who live together as a
community despite racial or cultural differences.

• Groups of people which cannot comprise a State:

◦ Amazons – not of both sexes; cannot perpetuate themselves
◦ Pirates – considered as outside the pale of law, treated as an enemy of all mankind; “hostis
humani generis”

B. Territory – the fixed portion of the surface of the earth inhabited by the people of the State.
The size is irrelevant. (San Marino v. China). But, practically, must not be too big as to be difficult to
administer and defend; but must not be too small as to unable to provide for people’s needs.
C. Government – the agency or instrumentality through which the will of the State is formulated,
expressed and realized.

D. Sovereignty – the power to direct its own external affairs without interference or dictation from
other states.

Classification of States
1. Independent states – having full international personality.
• Sovereignty – connotes freedom in the direction by the state in its own internal and external
affairs.
• However international law is concerned only with this freedom in so far as it relates to
external affairs; hence, a state which is not subject to dictation from others in this respect is
known as an independent state.

2. Dependent states – exemplified by the suzerainty and the protectorate and are so called because
they do not have full control of their external relations.

• Dependent states fall into two general categories: the protectorate and the suzerainty. However,
there is no unanimity as to their basic distinctions in terms of measure of control over its external
affairs.

3. Neutralized states – an independent state, whether it be simple or composite, may be neutralized

through agreement with other states by virtue of which the latter will guarantee its integrity and
independence provided it refrains from taking any act that will involve it in war or other hostile activity
except for defensive purposes.

Classification or Types of An Independent State

1. Simple state – one which is placed under a single and centralized government exercising power over
both its internal and external 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
relations.

Kinds or Categories of Composite States:

a) Real Union – created when two or more states are merged under a unified authority so that they
form a single international person through which they act as one entity (e.g. Norway and Sweden from
18154 to 1905).

b) Federal Union (or a federation) – is a combination of two or more sovereign states which upon
merger cease to be states, resulting in the creation of a new state with full international personality to
represent them in their external relations as well as a certain degree of power over the domestic affairs
and their inhabitants (e.g. German Empire under the Constitution of 1871).

c) Confederation – an organization of states which retain their internal sovereignty and, to some degree,
their external sovereignty, while delegating to the collective body power to represent them as a whole
for certain limited and specified purposes (e.g. German states in 1866 until they eventually developed
into a more closely-knit federation).

d) Personal Union – comes into being when two or more independent states are brought together
under the rule of the same monarch, who nevertheless does not constitute one international person for
the purpose of representing any or all of them. Strictly speaking therefore, the personal union is not a
composite state because no new international person is created to represent it in international relations
(e.g. Belgium and the Former Congo Free State from 1885 to 1905).

2. The United Nations

Although the United Nations is not a state or a super-state but a mere organization of states, it is
regarded as an international person for certain
purposes.

• It enjoys certain privileges and immunities, such as non-suability, inviolability of its premises and
archives, and exemption from taxation.

• It can assert a diplomatic claim on behalf of its officials, and treaties may also be concluded by it
through the General Assembly, the Security Council, and the Economic and Social Council.

• Trust territories are supposed to be under its residual sovereignty.

3. The Vatican City

In 1928, Italy and the Vatican concluded the Lateran Treaty “for the purpose of assuring to the Holy See
absolute and visible independence and of guaranteeing to it absolute and indisputable sovereignty in
the field of international relations.”

4. Colonies and Dependencies

From the viewpoint of international law, a colony or a dependency is part and parcel of the parent state,
through which all its external relations are transacted with other states.

Nevertheless, such entities have been allowed on occasion to participate in their own right in
international undertakings and granted practically the statusof a sovereign state. It is when acting in
this capacity that colonies and dependencies are considered international persons.

5. Mandates and Trust Territories

The system of mandates was established after the first World War in order to avoid outright annexation
of the underdeveloped territories taken from the defeated powers and to place their administration
under some form of international supervision.

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 War II; and,
3. Those voluntarily placed under the system of the states responsible for their administration.

These territories enjoy certain rights directly available to them under the United Nations Charter that
vest them with a degree of international personality. They are not however sovereign.

6. Belligerent Communities

When a portion of the population rises up in arms against the legitimate government of the state, and
such conflict widens and aggravates, it may become necessary to accord the rebels recognition of
belligerency.

For purposes of the conflict, and pending determination of whether or not the belligerent community
should be fully recognized as a state, it is treated as an international person and becomes directly
subject to the laws of war and neutrality.

7. International Administrative Bodies

Certain administrative bodies created by agreement among states may be vested with international
personality (e.g. International Labor Organization, World Health Organization).

Two Requisites for International Administrative Bodies to be Vested with International Personality:
1. Their purposes are mainly non-political; and that
2. They are autonomous, i.e. not subject to the control of any state.

8. Individuals

Traditional concept regards the individual only as an object of international law who can act only
through the instrumentality of his own state in matters involving other states.

Of late, however, the view has grown among many writers that the individual is not merely an object
but a subject of international law. One argument is that the individual is the basic unit of society,
national and international, and must therefore ultimately governed by the laws of this society.

CHAPTER 3
THE UNITED NATIONS

The United Nations emerged out of the travail of World war II as symbol of man's undismayed
determination to establish for all nations a rule of law that would forever banish the terrible holocaust
of war in the so9lution of international disputes.

The first formal step toward the creation of the United Nations was the Moscow Declaration, signed by
the representatives of China, the Soviet Union, the United Kingdom, and the United States.

The U.N. Charter

The United Nations Charter – a lengthy document consisting of 111 articles besides the preamble and
the concluding provisions. It also includes the Statute of the International Court of Justice which is
annexed to and made an integral part of it.

In one sense, the Charter maybe considered a treaty because it derives its binding force from the
agreement of the parties to it. In another sense, it may be regarded as a constitution in so far as it
provides for the organization and operations of the different organs of the United Nations and for the
adoption of any change in its provisions through formal process of amendment.

The Charter is intended to apply not only to the members of the Organization but also to non-member
states so far as may be necessary for the maintenance of international peace and security.

Amendments to the Charter shall come into force by a vote of two-thirds of the members of the General
Assembly and ratified in accordance with their respective constitutional processes by two-thirds of the
Members of the United Nations.

The Preamble to the Charter

The preamble introduces the Charter and sets the common intentions that moved the original members
to unite their will and efforts to achieve their common purposes.

Purposes

The purposes of the Charter are expressed in Article 1 as follows:

1. Maintain international peace and security;

2. Develop friendly relations among nations;
3. Achieve international cooperation in solving international problems;
4. Be a center for harmonizing the actions of nations in the attainment of these common ends.

Principles

The Seven Cardinal Principles ( as enumerated in Article 2):

1. The Organization is based on the principle of the sovereign equality of all its members;

2. All Members shall fulfill in good faith the obligations assumed by them in accordance with the
present Charter;

3. All Members shall settle their international disputes by peaceful means;

4. All Members shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any state;

5. All Members shall give the United Nations every assistance in any action it takes in accordance with
the present Charter;
6. The Organization shall ensure that states which are not Members of the United Nations act in
accordance with these Principles; and,

7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters
which are essentially within the domestic jurisdiction of any state.
Membership

Two Kinds of members in the United Nations

1. Original – those which, having participated in the United Nations Conference on International
Organization at San Francisco or having previously signed the Declaration by the United Nations of
January 1, 1942, signed and ratified the Charter of the United Nations.
• Interestingly, the Philippines was included as original member although it was not yet a state
at the time.

2. Elective
In addition to the original members, other members may be admitted to the United Nations by decision
of the General Assembly upon the favorable recommendation of the Security Council.

Membership Qualifications to the United Nations

1. It must be a state;
2. It must be peace-loving;
3. It must accept the obligations of the Charter;
4. It must be able to carry out these obligations; and,
5. It must be willing to carry out these obligations;

Suspension of Members

As in the case of admission, suspension is effected by two-thirds of those present and voting in General
Assembly upon the favorable recommendation of at least nine members of the Security Council,
including all its permanent members.

The suspension may be lifted alone by the Security Council, also by a qualified majority vote. Nationals
of the suspended member may, however, continue serving in the Secretariat and the International Court
of Justice as they are regarded as international officials or civil servants acting for the Organization itself.

Since suspension affects only its rights and privileges, the member is still subject to the discharge of its
obligations under the Charter.

Expulsion of Members

A member which has persistently violated the principles contained in the Charter may be expelled by
two-0thirds of those present and voting in the General Assembly upon the recommendation of the
Security Council by a qualified majority vote.

Withdrawal of Members
No provision on withdrawal of membership was included in the Charter because
of the fear that it might encourage successive withdrawals that would weaken the Organization.

Organs of the United Nations

1. The General Assembly

2. The Security Council
3. The Economic and Social Council
4. The Trusteeship Council
5. The International Court of Justice
6. The Secretariat

A. The General Assembly

It consists of all the members of the Organization, each of which is entitled to send not more than five
representatives and five alternates as well as such technical staff as it may need.

• Functions of the General Assembly

◦ Deliberative - such as initiating studies and making recommendations;
◦ Supervisory – such as receiving and considering annual and special reports from the other
organs;
◦ Financial – such as consideration and approval of budget of the Organization;
◦ Elective – such as the election of non-permanent members of the Security Council;
◦ Constituent – such as the admission of members and the amendment of the Charter.

B. The Security Council

The key organ of the United Nations of international peace and security is the Security Council.
It consists of five permanent members and ten elective members. The elective members are elected for
two-year terms.

C. The Economic and Social Council

The responsibility for the promotion of international economic and social cooperation is vested in the
General Assembly, and under its authority, the Economic and Social Council. Specifically these organs
should exert efforts toward:
• higher standards of living, full employment, and conditions of economic and social progress
and development;
• solutions of international economic, social, health and related problems, and international,
cultural and educational cooperation; and,
• universal respect for human rights and fundamental freedoms for all without distinction as to
race, sex, language or religion.

D. The Trusteeship Council

It is the organ charged with the duty of assisting the Security Council and the General Assembly in the
administration of the international trusteeship system.

E. The International Court of Justice

It functions in accordance with the Statute. All members of the Organization are ipso facto parties to the
Statute. A non-member may become a party on conditions to be determined in each case by the
General Assembly upon the recommendation of the security 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
request of the General

Assembly or the Security Council, as well as other organs of the United Nations, when authorized by the
General Assembly, on legal questions arising within the scope of their activities.

F. The Secretariat

It is the chief administrative organ of the United Nations which is headed by the Secretary-General.

The Secretary-General is chosen by the General Assembly upon the recommendation of the Security
Council. His term is fixed at five years by resolution of the general Assembly, and he may be re-elected.

The Secretary-General is the highest representative of the United Nations and is authorized to act in its
behalf. When acting in this capacity, he is entitled to full diplomatic immunities and privileges which
only the Security Council may waive.

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 functions
as may be assigned to him by these organs.

In addition, he prepares the budget of the United Nations for submission to the General Assembly,
provides technical facilities to the different organs of the Organization, and in general coordinates its
vast administrative machinery.
 CHAPTER 4
THE CONCEPT OF THE STATE

As the basic unit of the international community, the state is the principal subject of international law.

Creation of the State

Four Essential Elements of the State
1. People
2. Territory
3. Government
4. Sovereignty
Methods by which Status of A State is Acquired
1. Revolution
2. Unification
3. Secession
4. Assertion of independence
5. AgreementsAttainment of civilization

The Principle of State Continuity

From the moment of its creation, the state cointinues as a juristic being notwithstanding changes in its
circumstances, provided only that they do not result in loss of any of its essential elements.

Extinction of the State

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 the essential elements of the state will result in its
extinction.

Succession of States

State succession takes place when one state assumes the rights and some of
the obligations of another because of certain changes in the condition of the latter.

Universal Succession – when a state is annexed to another state or is totally dismembered or merges
with another state to form a new state.

Partial Succession – when a portion of the territory of a state secedes or is ceded to another or when an
independent state becomes a protectorate or a suzerainty or when a dependent state acquires full
sovereignty.

Consequences of State Succession

• The allegiance of the inhabitants of the predecessor state in the territory affected is transferred to the
successor state.

• The political laws of the former sovereign are automatically abrogated and may be restored only by a
positive act on the part of the new sovereign.
• Treaties of a political and even commercial nature are also discontinued, but the successor state is
bound by treaties dealing with local rights and duties.

• All rights of the predecessor state are inherited by the successor state but this is not so where the
liabilities are concerned.

Succession of Governments

One government replaces another either peacefully or by violent methods. In both instances, the
integrity of the state is not affected; the state continues as the same international person except only
that its lawful representative is changed.

The rule is that where the new government was organized by virtue of a constitutional reform, the
obligations of the replaced government are also completely assumed by the former.

Conversely, where the new government was established through violence, it may lawfully reject the
purely personal or political obligations of the predecessor government but not those contracted by it in
the ordinary course of official business.

CHAPTER 5
RECOGNITION

Even if an entity has already acquired the elements of international personality, it is not for this reason
alone automatically entitled to membership in the family of nations. Its admission thereto is dependent
on:
• as reflective of the majority theory, the acknowledgment of its status by those already within
the fold and their willingness to enter into relations with it as a subject of international law
(declaratory);

• as reflective of the minority theory, the acknowledgment is mandatory and legal and may be
demanded as a matter of right by any entity that can establish its possession of the four
essential elements of a state (constitutive).

Objects of Recognition

Recognition may be extended to:

a. State, which is generally held to be irrevocable and imports the recognition of its government;

b. Government, which may be withdrawn and does not necessarily signify the existence of a state as the
government may be that of a mere colony; and,

c. Belligerency, which does not produce the same effects as the recognition of states and governments
because the rebels are accorded international personality only in connection with the hostilities they are
waging.
Kinds of Recognition

1. Express recognition – may be verbal or in writing;

2. Implied recognition – when the recognizing state enters into official intercourse with the new
member by exchanging diplomatic representatives with it, etc.

The Act of Recognition is Indicative of the Following Intentions

1. To treat with the new state as such;

2. To accept the new government as having authority to represent the state;
3. To recognize in the case of insurgents that they are entitled to exercise belligerent rights.

Recognition of State

The recognition of a new state is the free act by which one or more states acknowledge the existence on
a definite territory of a human society politically organized, independent of any other existing state, and
capable of observing the obligations of international law, and by which they manifest therefore their
intention to consider it a member of the international community.

Recognition of Governments

The recognition of the new government of a state which has been already recognized is the free act by
which one or several states acknowledge that a person or a group of persons are capable of binding the
state which they claim to represent and witness their intention to enter into relations with them.

Two Kinds of Governments

1. De Jure
2. De facto

Three Kinds of De Facto Government

1. That which is established by the inhabitants who rise in revolt against and depose the legitimate
regime;

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,

3. That which is established by the inhabitants of a state who secede therefrom without overthrowing
its government.

Tobar or Wilson Principle – recognition shall not be extended to any government established by
revolution, civil war, coup d'etat or other forms of internal violence until the freely elected
representatives of the people have organized a constitutional 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 administrative machinery of the state with popular acquiescence and
that it is willing to comply with its international obligations.

Distinctions between the two kinds of recognition

De Jure De Facto
• Relatively permanent; • Provisional;
• Vests title in the government to its properties • Does not;
abroad;
• Brings about full diplomatic relations. • Limited to certain juridical relations.

Effects of Recognition of State and Governments

1. Full diplomatic relations are established except where the government recognized is de facto;

2. The recognized state or government acquired right to sue in the courts of the recognizing state.
It is error, however, to suppose that non-suability of the foreign state or government is also an effect of
recognition, as this is an attribute it can claim whether or not it has been recognized by the local state.
The applicable rule is the doctrine of state immunity. It has been held that to cite “a foreign sovereign
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.”

3. The recognized state or government has a right to the possession of the properties of its predecessor
in the territory of the recognizing state.

4. All acts of the recognized state or government are validated retroactively, preventing the recognizing
state from passing upon their legality in its own courts.

Recognition of Belligerency

A belligerency exists when the inhabitants of a state rise up in arms for the purpose of overthrowing the
legitimate government.

Conditions for A Belligerent Community to Be Recognized

1. There must be an organized civil government directing the rebel forces;

2. The rebels must occupy a substantial portion of the territory of the state;

3. The conflict between the legitimate government and the rebels must be serious, making the outcome
uncertain; and,

4. The rebels must be willing and able to observe the laws of war.
Consequences of Recognition of Belligerency

Upon recognition by the parents state, the belligerent community is considered a separate state for
purposes of the conflict it is waging against the legitimate government. Their relations with each other
will, thenceforth and for the duration of the hostilities, be governed by the laws of war, and their
relations with other states will be subject to the laws of neutrality.

CHAPTER 6
THE RIGHT OF EXISTENCE AND SELF-DEFENSE

Once a state comes into being, it is invested with certain rights described as fundamental.

Fundamental Rights of A State

1. The right to national existence and national defense;

2. The right of sovereignty and independence;
3. The right of equality;
4. The right of property and jurisdiction; and,
5. The right of legation or diplomatic intercourse.

The most important of these rights is the right of existence and self-defense, because all other rights are
supposed to flow or be derived from it. By virtue of this right, the state may take measures, including
the use of force, as may be necessary to counteract any danger to its existence.

Requisites of Right

In Art. 51 of the Charter of the United Nations, it is provided that –

“Nothing in the present Charter shall impair the inherent right of individual or collective self-
defense if any armed attack occurs against a member of the United Nations, until the Security
Council has taken the measures necessary for the maintenance of international peace and
security. xxx”

The presence of an “armed attack” to justify the exercise of the right of the self-defense under this
article suggests that forcible measures 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 moment for deliberation.”

Regional Arrangements

Collective self-defense is recognized not only in Article 51 of the Charter of the United Nations but also
in Art. VII on Regional Arrangements “... provided that such arrangements or agencies and their
activities are consistent with the Purposes and Principles of the United Nations (Art. 52, Sec. 1 of the
Charter of the United Nations).”
The Balance of Power

One reason for the organization of regional arrangements is to provide for the balance of power, which
Vattel described as “an arrangement of affairs so that no state shall be in position to have absolute
mastery and dominion over others.”

The maintenance of this balance of power has in a very real way contributed to international peace
although, being an “armed peace,” it is far from the ideal sought in the articles of faith of the United
Nations.

Aggression Defined

Definition of agression as adopted by the U.N. General Assembly on December 14, 1974:

Article 1

Aggression – is the use of armed force by a State against the sovereignty, territorial integrity or political
independence of another state, or in any other manner inconsistent with the Charter of the United
Nations.

Article 3

Any of the following acts qualify as an act of agression

a. The invasion or attack by the armed forces of a state of the territory of another state;

b. bombardment by the armed forces of a state against the territory of another state;

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 state with the agreement of the
receiving state, in contravention of the conditions provided for in the agreement or any extension of
their presence in such territory beyond the termination of the agreement;

f. The action of the state in allowing its territory, which it has placed at the disposal of another state, to
be used by that other state perpetrating an act of aggression against a third state; and,

g. The sending by or on behalf of a state of armed force against another state of such gravity as to
amount to the acts listed above, or its substantial involvement therein.
 CHAPTER 7
THE RIGHT OF INDEPENDENCE

Sovereignty is the supreme, uncontrollable power inherent in a state by which that state is governed. It
is “the supreme power of the State to command and enforce obedience, the power to which, legally
speaking, all interests are practically subject and all wills subordinate.

Two Aspects of Sovereignty

1. Internal Sovereignty – refers to the power of the state to direct its domestic affairs, as when it
establishes its government, enacts laws for observance within its territory.

2. External Sovereignty – signifies the freedom of the state to control its own foreign affairs, as when it
concludes treaties, makes war or peace, and maintains diplomatic and commercial relations. It is often
referred as independence.

Nature of Independence

Independence cannot be regarded as importing absolute freedom. It only means freedom from control
by any other state or group of states and not freedom from restrictions that are binding on all states
forming the family of nations.

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 the Charter of the United Nations. It may adhere to the maxim of Pacta
Sunt Servanda. The principle of mare liberum will prevent it 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.

Pacta Sunt Servanda – the observance of a state to treaties with other state in good faith.

Intervention

In addition, the state must abstain from intervention. Even as it expects its independence to be
respected by other states, so too must it be prepared to respect their own independence.

Intervention – an act by which a state interferes with the domestic or foreign affairs of another state or
states through the employment of force or the threat of force.

The use of force is only allowed under the Charter of the United Nations when it is exercised as an act of
self-defense, or when it is decreed by the Security Council as a preventive or enforcement action for the
maintenance of international peace and security.

The Drago Doctrine

This doctrine was embodied in the Hague Convention of 1907 through the provision that “ the
Contracting Powers agree not to have recourse to armed force for the recovery of contract debts
claimed from the government by the government of another country as being due to its nationals.
This rule was, however, dissipated by the Porter Resolution.
Porter Resolution – intervention was permitted if the debtor state refused an offer to arbitrate,
prevented agreement on the compromis, or having agreed thereto, refused to abide by the award of the
arbitrator.

CHAPTER 8
THE RIGHT OF EQUALITY

In Article 2 of the Charter of the United Nations, it is announced that “the Organization is based on the
principle of the sovereign equality of all its Members.”

In the provision of the Montevideo Convention of 1933, “states are juridically equal, enjoy the same
rights, and have equal capacity in their exercise.”

Essence of Equality

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 number, must be obsreved or respected
by the international community in the same manner as rights of other states are observed and
respected.

Accordingly, all members of the United Nations have each one vote in the General Assembly, all votes
having equal weight, and are generally eligible for positions in the various organs of the United Nations.
Every state has the right tothe protection of its nationals, to make use of the open seas, or to acquire or
dispose territory.

Under the rule of par in parem, non habet imperium, even the strongest state cannot assume
jurisidiction over another state, no matter how weak.

Legal Equality v. Factual Inequality

But even from the viewpoint of strictly legal rules, it is apparent that absolute equality among states is
still a distant and well high impossible aspiration. Under the Charter of the United Nations, for example,
non-procedural questions are decided by the Security Council only with the concurrence of the Big Five,
any of which may defeat a proposal through the exercise of the veto. This is true also with respect to the
ratification of any proposal to amend the Charter.

But this rule of equality itself sometime poses serious questions of inequality. This is so because it does
not take into account the realities of international life, including the greater stakes of the more populous
states in the decision of questions involving the entire community of nations. Such decisions may affect
the interests, not of individual states as such, but of the whole of humanity itself without distinctions as
to color, nationality or creed.
 CHAPTER 9
TERRITORY

Territory – the fixed portion of the surface of the earth inhabited by the people of the state.

As previously observed, the territory must be big enough to provide for the needs of the population but
should not be so extensive as to be difficult to administer or defend from external aggression.

Acquisition and Loss of Territory

Mode in the Acquisition of Territory

1. by discovery and occupation

2. by prescription
3. by cession
4. by subjugation and
5. by accretion

Mode of Losing Territory

1. by abandonment or dereliction
2. by cession
3. by subjugation
4. by revolution and
5. by natural causes

Discovery and Occupation

Discovery and occupation is an original mode of acquisition by which territory not belonging to any
state, or terra nullius, is placed under the sovereignty of the discovering state. The territory need not be
uninhabited provided it can be established that the natives are not sufficiently civilized and can be
considered as possessing not rights of sovereignty but only rights of habitation. Like the open seas, outer
space is res communist and not susceptible to discovery and occupation.

Requisites of Valid Discovery and Occupation

1. Possession, and
2. Administration

Mere possession will not suffice, as only an inchoate title of discovery is acquired by the claimant state
pending compliance with the second requirement, which is the administration of the territory.
Otherwise, the title will lapse and the territory will become res nullius again.

• “Discovery alone, without any subsequent act, cannot at the present time suffice to prove sovereignty
over the Island of Palmas....” (Island of Palmas Case)
• “Besides the animus occupandi, the actual and not the nominal taking of possession is necessary
condition of occupation. This taking of possession consists... steps to exercise exclusive authority there.”
(Clipperton Island Case)

Dereliction

Requisites of Valid Dereliction

1. act of withdrawal, and

2. the intention to abandon

Hence, where the forces of the state are driven away from the territory by the natives, title is not
thereby necessarily forfeited, as it may be that they intend to return with the necessary reinforcements
to suppress the resistance. If such intention is not present, the territory itself becomes res nullius or
terra nullius, becoming open once again to the territorial ambitions of other states.

Prescription

There is as yet no rule in international law fixing the period of possession necessary to transfer title to
the territory from the former to the subsequent sovereign.

Cession

Cession – is a method by which territory is transferred by one state to another by voluntary agreement
between them. Cession may be in the form of sale, donation, barter or exchange, and even by
testamentary disposition.

Subjugation

Subjugation – is when, having been previously conquered or occupied in the course of war by the
enemy, it is formally annexed to it at the end of the war.

Requisites of Valid Subjugation

1. conquest
2. annexation

Accretion

Accretion – is a mode of acquiring territory based on the principle of accession cedat principali. It is
accomplished through both or natural or artificial processes.

Components of Territory

Territory of the State Consists of the Following:

1. Terrestrial Domain
2. Maritime and Fluvial Domain
3. Aerial Domain
A. The Terrestrial Domain

Terrestrial Domain – refers to the land mass which may integrate, or dismembered, or partly bounded
by water, or consists of one whole island. It may also be composed of several islands, like the Philippines
and Indonesia, which are known as mid-ocean archipelagoes, as distinguished from the coastal
archipelagoes like Greece.

B. The Maritime and Fluvial Domain

Maritime and Fluvial Domain – consists off the bodies of water within the land mass and the waters
adjacent to the coasts of the state up to a specified limit.

1. Rivers

Rivers may be classified into:

• national – situated completely in the territory of one state,
• multi-national – that flow through the territories of several states,
• international – that is navigable from the open sea and is open to the use of vessels from all states,and
• boundary – divides the territories of riparian states.

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

Where the boundary river changes its course by a gradual and normal process, such as accretion or
erosion, the dividing line follows the new course; but if the deviation is violent is abrupt, as by avulsion,
the boundary line will continue to be laid on the old bed of the river, in the absence of contrary
agreement.

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 channel underneath, unless otherwise provided by the riparian state.

2. Bays

Bay – is a well-marked indentation whose penetration is in such proportion to the width of its mouth as
to contain land-locked waters and constitute more than a curvature of the coasts.

An indentation shall not, however, be regarded as a bay unless its area is as large as or larger than that
of a semi-circle whose diameter is a line drawn across the mouth of that indentation.

The above rules do not apply to the so-called historic bays.

3. The Territorial Sea

Territorial Sea – described as the belt of waters adjacent to the coasts of the state, excluding the
internal waters in bays and gulfs, over which the state claims sovereignty and jurisdiction.

Traditionally, the breadth of the territorial sea is reckoned at three nautical miles, or a marine league,
from the low-water mark.
However, many states have since extended their territorial seas, so that no uniform rule can be
regarded as established at present in this regard.

4. The UN Conferences of the Law of the Sea

Three international conferences had been called so far to formulate a new law of the sea.

The first was held in 1958 at Geneva, Switzerland, and resulted in the adoption of the Convention on the
Territorial Sea and the Contiguous Zone, the Convention of the High Seas, and the Convention on Fishing
and the Living Resources of the High Seas, and the Convention on the Continental Shelf. It failed
however to define the breadth of the territorial sea. The Philippines did not ratify it because of the
absence of provisions recognizing the archipelago doctrine it was advocating.

The second conference, which was held in 1960, also at Geneva, likewise left unresolved the question on
the breadth of the territorial sea.

The third conference, called in 1970 by the United Nations is still in progress.

5. The Philippine Territorial Sea

The claim of the Philippines to its territorial sea is based on historic right or title or as it is often called
the treaty limits theory.

6. The Archipelago Doctrine

The Philippine position on the definition of its internal waters is commonly known as the archipelago
doctrine. This is articulated in the second sentence of Article I of the 1987 Constitution, which follows:
“The national territory comprises the Philippine archipelago, with all the islands and waters embraced
therein, and all the other territories belonging to the Philippines by historic right or legal title...”

Our position is that all these islands should be considered one integrated whole instead of being
fragmented into separate units each with its own territorial sea. Otherwise, the water outside each of
these territorial seas will be regarded as high seas and thus be open to all foreign vessels to the
prejudice of our economy and national security.

An archipelago is a group of islands, including parts of islands, interconnecting waters and other natural
features which are so closely interrelated that such islands, waters and other natural features form an
intrinsic geographical, economic, and political entity, or which historically have been regarded as such.

Hence, in defining the internal waters of the archipelago, straight baselines should be drawn to connect
appropriate points of the outermost islands without departing radically from the general direction of
the coast so that the entire archipelago shall be encompassed as one whole territory. The waters
inside these baselines shall be considered internal and thus not subject to entry by foreign vessels
without the consent of the local state.
7. Basis of the Article I of the 1987 Constitution

Article I of the 1987 Constitution was based on R.A. 3046 as amended by R.A. No. 5446 declaring the
Philippine territorial sea.

8. Methods of defining the Territorial Sea

Two Methods Defining the Territorial Sea

(a) Normal baseline method – the territorial sea is simply drawn from the low-water mark of the coast,
to the breadth claimed, following its sinuosities and curvatures but excluding the the internal waters in
bays and gulfs.

(b) Straight baseline method – straight lines are made to connect appropriate points on the coast
without departing radically from its general direction.

C. The Aerial Domain

The aerial domain – the airspace above the terrestrial domain and the maritime and fluvial domain of
the state, to an unlimited altitude but not including the outer space.

CHAPTER 10
JURISDICTION

Jurisdiction is the authority exercised by the state over persons and things within or sometimes outside
its territory, subject to certain exceptions.

General Classifications of Jurisdiction

1. Personal Jurisdiction
2. Territorial Jurisdiction

Subjects of State Jurisdiction

1. its nationals
2. the terrestrial domain
3. the maritime and fluvial domain
4. the continental shelf
5. the open seas
6. the aerial domain
7. outer space
8. other territories

Personal Jurisdiction

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 protection of his state wherever he may be and is, therefore, bound to
it by a duty of obedience and allegiance.
• Article 15 of the Civil Code: “laws relating to family rights and duties, or to the status, condition and
legal capacity of persons, are binding upon citizens of the Philippines, even though living abroad.”

• Under Article 16 of the Civil Code: “intestate and testamentary succession, both with respect to the
other of succession and to the amount of successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the 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.”

• Jurisdiction to tax our citizens, even if not residing in the Philippines, is also provided for in our Internal
Revenue Code for income received by them “from all sources.”

Indeed, even an alien may be held subject to the laws of a state whose national interest he has violated,
and notwithstanding that the offense was committed outside its territory.

• Article 2 of the Revised Penal Code, for instance, punishes any person who, whether in or outside our
territory, should forge or counterfeit Philippine currency, utter such spurious securities or commit any
crime against our national security or the law of the nations.

Territorial Jurisdiction

General rule: a state has jurisdiction over all persons and property within its territory.

The jurisdiction of the nation within its own territory is necessary, exclusive and absolute. It is
susceptible of no limitation not imposed by itself (The Schooner Exchange v McFaddon).

Exceptions:
1. Foreign states, heads of states, diplomatic representatives, and consuls to a certain degree;

• Foreign states and their heads are exempt because of the sovereign equality of states and on the
theory that a contrary rule would disturb the peace of nations. Diplomats and consuls enjoy the
exemption in order that they may have full freedom in the discharge of their official functions.

2. Foreign state property engaged in non-commercial activities;

• By fiction of law, public vessels are regarded as extensions of the territory of the foreign state.

3. Acts of state;

• Every sovereign state is bound to respect the independence of every other sovereign state, and the
courts of one country will not sit in judgment on the acts of the government of another, done within its
own territory.

4. Foreign merchant vessels exercising the rights of innocent passage or arrival under stress;

• Innocent passage – navigation through the territorial sea of the state for the purpose of traversing
that sea without entering internal waters, or of proceeding to internal waters, as long as it is not
prejudicial to the peace, good order or security of the coastal state.
• Arrival under stress – entrance to another state due to lack of provisions, unseawothiness of the
vessel, inclement weather, or other force majeure, like pursuit by pirates.

5. Foreign armies passing through or stationed in its territory with its permission;

6. Such other persons or property over which it may, by agreement, waive jurisdiction.

Land Jurisdiction

Everything found within the territorial domain of the state is under its jurisdiction. Nationals and aliens,
including non-residents, are bound by its laws, and no process from a foreign government can take
effect for or against them within the territory of the local state without its permission.

Also, as against all other states, the local state has exclusive title to all property within its territory which
it may own in its own corporate capacity or regulate when under private ownership through its police
power for forcibly acquire through the power of eminent domain. Such property is also subject to its
taxing power.

Maritime and Fluvial Jurisdiction

General rule: the internal waters of a state are assimilated to the land mass and subjected to the same
degree of jurisdiction exercised over the terrestrial domain.

Civil, criminal and administrative jurisdiction is exercised by the flag state over its public vessels
wherever they may be, provided they are not engaged in commerce.

Foreign merchant vessels docked in a local port or bay, jurisdiction is exercised over them by the coastal
state in civil matters.

Criminal jurisdiction is determined according to either the English rule or the French Rule.

English rule – the coastal state shall have jurisdiction over all offenses committed on board, except only
where they do not compromise the peace of the port.

French rule – the flag state shall have jurisdiction over all offenses committed on board such vessel,
except only where they compromise the peace of the port.

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. It is necessary to:

1. prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or
territorial sea; and,

2. punish infringement of the above regulations within its territory or territorial sea.
The Continental Shelf

Continental Shelf – refers to a) the seabed and subsoil of the submarine areas adjacent to the coast but
outside the area of the territorial sea, to a depth of 200 meters, or beyond that limit, to where the depth
of superjacent waters admits the of the exploitation of the natural resources of the said areas; and, b) to
the seabed and subsoil of similar areas adjacent to the coasts of islands.

The coastal state has the sovereign right to explore the continental shelf and to exploit its natural
resources and for this purpose it may erect on it such installations and equipment as may be necessary.

But this right shall not affect the legal nature of the superjacent waters as open seas or of the airspace
above such waters and their use as such by other states shall not be impaired or disturbed.

The Patrimonial Sea

The Exclusive Economic Zone (EEZ) or Patrimonial Sea – extends 200 nautical miles from the coast or
the baselines. All living and non-living resources found therein are claimed to belong exclusively to the
coastal state.

However, it has not yet been recognized as a rule of international law.

The Open Seas

General rule: The open seas or the high seas are res communis and available to the use of all states for
purposes of navigation, flying over them, laying submarine cables or fishing.

Exceptions:

1. Over its vessels. The flag state has jurisdiction over its public 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 territory, when jurisdiction is waived or cannot
be exercised by the territorial sovereign, or when such vessels are on the open seas.

2. Over pirates. Pirates are enemies of all mankind and may be captured on the open seas by the vessels
of any state, to whose territory they may be brought for trial and punishment. Where a pirate vessel
attempts to escape into territorial waters of another state, the pursuing vessel may continue the chase
but is under the obligation of turning over the pirates, when captured, to the authorities of the coastal
state.

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 visit and search any neutral merchant vessel on the open seas and
capture it or its cargo if it is found or suspected to be engaged or to have engaged in activities favorable
to the other belligerent.

4. Under the doctrine of hot pursuit. If an offense is committed by a foreign merchant vessel within the
territorial waters of the coastal state, its own vessels may pursue the offending vessel into the open seas
and upon capture bring it back to its territory. The pursuit must be continuous or unabated; otherwise,
it will be deemed to have “cooled” and can no longer be resumed.
Aerial Jurisdiction

There are no traditional rules in international law regarding the rights of the subjacent state to its aerial
domain.

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.