CODES AND NOTES ON person property taxes paid

CONSTITUTIONAL LAW II has expropriat

NOTES AND CASES ON CONSTITUTIONAL LAW II contribut ed
I. THE INHERENT/ FUNDAMENTAL POWERS OF THE ed to the
STATE general
1. Police Power welfare
2. Power of Eminent Domain
3. Power of Taxation Limitations:
(a) May not be exercised arbitrarily to the prejudice
· They are inherent powers because they belong to the of the Bill of Rights.
very essence of government and without them no (b) Subject at all times to the limitations and
government can exist. requirements of the Constitution and may in
proper cases be annulled by the courts, i.e. when
Similarities, Distinctions, and Limitation there is a grave abuse of discretion.

Similarities: A. POLICE POWER

· They are inherent in the State and may be exercised by
it without need of express constitutional grant. Police Power – is an inherent power of the State to
· They are necessary and indispensable The State cannot promote the welfare of society by restraining and
continue or be effective unless it is able to regulating the use of liberty and property.
exercise them.
· They are methods by which the State interferes with
private rights.
· They all presuppose an equivalent compensation for the Justification of existence:
private rights interfered with.
· They are exercised primarily by the legislature. · Salus populi est suprema lex – the welfare of the people
is the supreme law;

Differences: · Sic utere tuo ut alienum non laedas – a person must use
Police Eminent Taxation his own property so as not to injure another
Power Domain
As to regulates regulates Regulates Scope:
regulation/ext both property property (a) cannot be bargained away through the medium of a
ent of power liberty rights only rights only treaty or contract (Stone v Mississippi)
and (b) may use taxing power as its implement (Tio vs
property Videogram Regulatory Board)
As to who may only the governme only the (c) may use eminent domain as its implement (Assoc. of
exercise governme nt and government Small Landowners vs Sec. of Agrarian Reform)
nt some (d) could be given retroactive effect and may reasonably
private impair vested rights or contracts (police power prevails
entities over contract)
As to the destroyed - - (e) dynamic, not static, and must move with the moving
property because it wholesom wholesome society it is supposed to regulate
taken is e -taken for a
noxious -taken for public use Who may exercise Police Power?
or a public or purpose (a) the Legislature (inherent)
intended use or (b) President (by delegation)
for purpose (c) administrative boards (by delegation)
noxious (d) lawmaking bodies on all municipal levels, including
purpose barangay (by delegation)
As to intangible full and protection (e) Municipal governments / LGU's (conferred by statute
Compensation altruistic fair and public – general welfare clause of RA 7160)
feeling equivalent improveme
that the of the nts for the
· 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 · private right vested in
· arises from the laws of every individual with which
society and is vested in the right of state or state
the state or grantee, necessity has nothing
 acting under the right to do
and power of the state · comes under the right of · if taking is under police power, it is not compensable
or benefit of the state necessity, of self-
preservation Taking Under Eminent Domain vs Taking in Police Power
· arises under the laws of :
society or society itself Police Power Eminent Domain
· cannot require the
conversion of the property · the prejudice suffered by · the individual suffers
taken to public use, nor is the individual property more than his aliquot part
there any need for the owner is shared in of the damages, i.e. a
payment of just common with the rest of special injury above that
compensation the community sustained by the rest of
the community
· The Regional Trial Court (RTC) has the jurisdiction over a
complaint for eminent domain.
· In Amigable v. Cuenca, where there is taking in the
Requisites of Eminent Domain: constitutional sense, the property owner need not file a
1. Necessity of exercise claim for just compensation with the Commission of
2. Private property Audit; he may go directly to the court to demand
3. Taking payment. Arbitrary action of the government shall be
4. Public use deemed a waiver of its immunity from suit.
5. Just compensation
· In City Government v. Ericta, an ordinance of Quezon
1. Necessity of Exercise City, under the guise of exercising police power,
· genuine necessity, and prescribed that at least 6% of the totalarea of memorial
· must be of public character parks must be developed and set aside for the burial of
◦ When exercised by legislature – political paupers. The Court held that such ordinance is not an
question exercise of police power but the taking of private
◦ When exercised by a delegate – justiciable property for public use. Hence, to satisfy the Constitution,
question there must be compensation.
▪ determine the: (a) adequacy of
compensation; (b) necessity of taking; and (c) 4. Public Use
public
use character Public use – is whatever may be beneficially employed for
the general welfare, including both direct or indirect
2. Private Property benefit or advantage to the public
· General Rule: anything that can come under the
dominion of man is subject to expropriation · In Heirs of Ardona v. Reyes, the Court held that the
· Exceptions: money and chose in action (personal right Constitution understand public use in a broad sense as
not reduced into possession, i.e. the right to meaning public welfare. That includes development of
bring an action to recover debt, money or tourism.
thing)
· Private property already devoted to public use cannot 5. Just Compensation
be expropriated by a delegate acting under a general
grant of authority (City of Manila vs Chinese Community) Just compensation – is fair and full equivalent payment
for the loss sustained, which is the measure of the
3. Taking indemnity, not whatever gain would accrue to the
expropriating agency. It is not market value per se. (Epza
Requisites (Republic vs Castellvi): v. Dulay)
(a) expropriator must enter a private property
(b) entry must be for more than a momentary period · Where only part of the property is
(c) entry must be under the warrant of legal authority expropriated: entitlement to consequential damages, if
(d) entry is for public use any
(e) the owner is deprived of enjoying his property
 + 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.
· Obligation to pay taxes is a duty
Taxes vs Licenses
Tax License

· to raise revenues · for regulatory purpose
only
· justified under police
power
· amount of fees required
is usually limited to the
cost of regulation
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
1. Legislature / Congress (inherent)
2. President (by delegation / tariff powers [Sec. 28 (2),
Art. VI, Consti])
3. local legislative bodies (conferred by direct authority
[Sec. 5, Art. X, Consti])
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
· 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
◦ statutory- discretion of legislature
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
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 (Mabini)
(2) right to be free from arbitrary personal restraint or
servitude
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
Aspects of Due Process
1. Substantive Due Process
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 and Competent Court
(b) Jurisdiction lawfully acquired over the person of the
defendant and/or property
(c) Hearing
 · 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 14 th 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 (2) if [1] is sworn
detection; insufficient, statements and
(2) the more pressing interest of safety and self- disregard it and affidavits.
preservation. (Malacat) require the (Silva vs
submission of Presiding Judge)
7. routine searches at borders and ports of entry supporting released
affidavits of
8. searches of businesses in the exercise of visitorial witnesses
powers to enforce police regulations Preliminary
inquiry (task of
Valid Warrantless Arrest the judge) –
1. in flagrante delicto determination
2. hot pursuit of
3. the offender escaped from the penal establishment probable cause
for the issuance
Requisites of a valid warrant of warrant of
Arrest Warrant Search Warrant arrest
Preliminary
1. Probable Such facts and Such facts and investigation
Cause circumstances circumstances proper (task of
must refer to which would which would the prosecutor)
one (1) specific lead a lead a – ascertainment
offense reasonably reasonably whether the
prudent man to prudent man to offender should
believe that an believe that an be held for trial
offense has offense has or be
been committed been committed
and the person and the objects 3. After Not merely Not merely
sought to be sought in the examination routinary but routinary but
arrested had connection of under oath or must must
committed it the offense are affirmation of be probing and be probing and
in the complainant exhaustive exhaustive
the place and the
sought to be witnesses he
searched may produce
2. Personal The judge The judge must 4.Particularity of General Rule: it General Rule:
determination personally personally description must contain when the
of probable determines the examine in the the name/s of description
cause by the existence of form of the persons to therein is as
judge probable cause; searching be arrested specific
it is not questions and Exception: if as the
necessary that answers... there is some circumstances
he should in writing and descriptio will
personally under oath... personae which ordinarily allow.
examine the the will enable the Exception:
complainant and complainants officer to when no other
his witnesses and his identify the more
(Soliven vs witnesses... accused accurate and
Makasiar) on facts detailed
personally description
Procedure: known to could have been
(1) personally them... given.
evaluate the and attach to
fiscal's report, or the record their
· 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 6. Patria Potestas – unemancipated minors are obliged to
certain and unequivocal and intelligently and obey their parents so long as they are under parental
willingly made. power and to observe respect and reverence to them
always (Art. 311, Civil Code)
Section 18 (1), Art. III. No person shall be detained
solely by reason of his political beliefs and aspirations.
US vs Pompeya An Act providing for the
J. RIGHT AGAINST INVOLUNTARY SERVITUDE method by which the
Section 18 (2), Art. III. No involuntary servitude in any people of the town may be
form shall exist except as a punishment for a crime called upon to render
whereof the party shall have been duly convicted. assistance for the
protection of the public and
Involuntary Servitude – the condition of one who is the preservation of peace
compelled by force, coercion, or imprisonment, and and good order is
against his will, to labor for another, whether he is paid or constitutional. It was
not. enacted in the exercise of
the police power of the
Involuntary Servitude Includes state and does not violate
the constitutional
(1) Slavery –civil relation in which one man has absolute prohibition on involuntary
power over the life, fortune and liberty of another; servitude.
Pollock vs Williams No indebtedness warrants a
(2) Peonage – a condition of enforced servitude by which suspension of the right to
the servitor is restrained of his liberty and compelled to be free from compulsory
labor in liquidation of some debt or obligation, real or service, and no state can
pretended, against his will make the quitting of work
any component of a crime,
General Rule or make criminal sanctions
No involuntary service in any form shall exist. available for holding
unwilling persons to labor.
Exceptions
K. CRUEL AND INHUMAN PUNISHMENT
1. Punishment for a crime for which the party shall have Section 19, Art. III.
been duly convicted (Sec. 18, Art. III) 1. Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted. Neither
2. Personal military or civil service in the interest of shall death penalty be imposed, unless, for compelling
national defense reasons involving heinous crimes, the Congress
(Sec. 4, Art. II) hereafter provides for it. Any death penalty already
imposed shall be reduced to reclusion perpetua.
3. Naval enlistment – remain in service until the end of 2. The employment of physical, psychological, or
voyage so that the crew would not desert the ship, degrading punishment against any prisoner or
making it difficult for the owners to recruit new hands to detainee or the use of substandard or inadequate
continue the voyage (Robertson vs Baldwin) penal facilities under subhuman conditions shall be
dealt with by law.
4. Posse comitatus – in pursuit of persons who might
have violated the law, the authorities might command all When is a penalty “cruel, degrading and inhuman”?
male inhabitants of a certain age to assist them (US vs
Pompeya) (1) A penalty is cruel and inhuman if it involves torture or
lingering suffering.
5. Return to work order in industries affected with Ex. Being drawn and quartered.
public interest (Kapisanan ng Manggagawa sa Kahoy vs
Gotamco) (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 The people have a right to
1989 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 Personal interest is not
Commission 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 · The doctrine of freedom of speech was formulated
free society. primarily for the protection of “core speech,” i.e., speech
which communicates political, social or religious ideas.
· In New York Times v. United States, the Court held that Commercial speech, however, does not.
prohibition of “prior restraint” is not absolute, although
any system of prior restraint comes to court bearing a Grosjean vs American There need not be total
heavy presumption against its constitutionality. Press Co. suppression; even restriction
of circulation constitutes
· In Near v. Minnesota, the exceptions to the prohibition censorship
of “prior restraint is enumerated by the Court, thus: Burgos vs Chief of Staff the search, padlocking and
“When a nation is at war, many things that might be said sealing of the offices of
in time of peace are such a hindrance to its effort .... No Metropolitan Mail and We
one would question but that government might prevent Forum by military
actual obstruction to its recruiting service or the authorities, resulting in the
publication of sailing dates of transports or the number or discontinuance of
location of troops.... The security of the community life publication of the
may be protected against incitements to acts of violence newspapers, was held to be
and the overthrow by force of orderly government.” prior restraint
Mutuc vs COMELEC the COMELEC prohibition
· In SWS v. Comelec, Sec. 1 of RA No. 9006, the Fair against the use of taped
Election Act says that surveys affecting national jingles in the mobile units
candidates shall not be published fifteen(15) days before used in the campaign was
an election and surveys affecting local candidates shall held to be unconstitutional,
not be published seven days before an election. The as it was in the nature of
provision is challenged as violative of freedom of censorship
expression. The Court held that as prior restraint, the rule Sanidad vs COMELEC the Court annulled the
is presumed to be invalid. The power of the Comelec over COMELEC prohibition
media franchises is limited to ensuring “equal against radio commentators
opportunity, time, space and the right to reply” as well as or newspaper columnists
to reasonable rates of charges for the use of media from commenting on the
facilities for “public information and forums among issues involved in the
candidates.” Here the prohibition of speech is direct, scheduled plebiscite on the
absolute and substantial. Nor does the rule pass the organic
O'Brien test for content related regulation because (1) it law creating the Cordillera
suppresses one type of expression while allowing other Autonomous Region as an
types such as editorials, etc. and (2) the restriction is unconstitutional restraint on
greater than what is needed to protect government freedom of expression
interest because the interest can be protected by But...
narrower restriction such as subsequent punishment.
Gonzales vs COMELEC the Court upheld the validity
· In Re: Request for Radio-TV Coverage of the Estrada of the law which prohibited,
Trial, the Court held that the propriety of the Estrada trial except during the prescribed
involves the weighing out of the constitutional election period, the making
guarantees of freedom of the press and the right to public of speeches,
information, on the one hand, and the fundamental rights announcements or
of the accused, on the other hand, along with the commentaries for or against
constitutional power of a court to control its proceedings the election of any party or
in ensuring a fair and impartial trial... With the possibility candidate for public office.
of losing not only the precious liberty but also the very JUSTIFICATION: the
life of an accused, it behooves all to make absolutely inordinate preoccupation of
certain that an accused receives a verdict solely on the the people with politics
basis of a just and dispassionate judgment...” tended toward the neglect
of the other serious needs of
the nation and the pollution
 of its suffrages.
Iglesia ni Cristo vs CA 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.
Primicias vs Fugosos The respondent mayor could
only reasonably regulate,
not absolutely prohibit, the
use of public places for the
purpose indicated.
National Press Club vs the Supreme Court upheld
COMELEC 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
katigbak classification of the 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 The ban does not satisfy the clear and present danger
solely by reason of his political beliefs and aspirations. rule because the evils envisioned are merely speculative.

· Without this assurance, the individual would hesitate to Terminiello vs City of · (speech inside an
speak for fear that he might be held to account for his Chicago auditorium with 800
speech, or that he might be provoking the vengeance of persons)
the officials he may have criticized. · speech is often
provocative and
· Not absolute; subject to police power and may be challenging. hence,
regulated (freedom of expression does not cover ideas “fighting words” are not
offensive to public order) sufficient to convict a
person absent a clear and
Right of students to free speech in school premises not present danger of a
absolute serious substantive evil
Primicias vs Fugosos The respondent mayor
General Rule: a student shall not be expelled or could only reasonably
suspended solely on the basis of articles he has written regulate, not absolutely
Exception: when the article materially disrupts class work prohibit, the use of
or involves substantial disorder or invasion of rights of public places for the
others, the school has the right to discipline its students purpose indicated.
(in such a case, it may expel or suspend the student) · the condition of Manila
at that time did not justify
Tests of valid governmental interference the mayor's fears. there
(criteria in determining the liability of the individual for was no clear and present
ideas expressed by him) : danger.
· decided in 1947
1. Clear and present danger rule Navarro vs Villegas (compare with Primicias
2. Dangerous tendency doctrine case)
3. Balance of interest test SC sustained respondent
mayor's act of refusing to
issue a permit enabling
1. Clear and Present Danger Rule – when words are used students to hold a public
in such circumstance and of such nature as to create a rally. Mayor feared the
clear and present danger that will bring about the rally would result to public
substantive evil that the State has a right to prevent. (As disorder.
formulated by Justice Holmes in Schenck v. United - decided in 1970
States) Reyes vs Bagatsing the denial of a permit to
hold a public rally was
Clear – causal connection with the danger of the invalid as there was no
substantive evil arising from the utterance showing of the probability
of a clear and present
Present – time element; imminent and immediate danger danger of an evil that
(the danger must not only be probable but also might arise as a result of
inevitable). (Gonzales v. Comelec) the meeting. The burden
of proving such eventually
· In ABS-CBN v. Comelec, the Comelec banned “exit polls” rests on the Mayor.
in the exercise of its authority to regulate the holders of
media franchises during the lection period. It contends 2. Dangerous Tendency Doctrine – if the words uttered
that “an exit poll has the tendency to sow confusion create a dangerous tendency of an evil which the State
considering the randomness of selecting interviewees.... has the right to prevent.(Cabansag v. Fernandez)
However, the Court said that exit polls constitute an
essential part of the freedoms of speech and of the press. · Justice Holmes, critique of this doctrine: Every idea is an
Hence, the Comelec cannot ban totally in the guise of of incitement. If believed, it is acted on unless some other
promoting clean, honest, orderly and credible elections.
belief outweighs it, or some failure of energy stifles the
movement at its birth.
Bayan vs Executive (f) the Calibrated Pre-
Secretary Ermita 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 DANGEROUS BALANCE OF
PRESENT TENDENCY RULE INTEREST RULE
DANGER
RULE
liberty is Authority is the issue is
preferred preferred 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 However, the right must be exercised in such a way that it
protected under the freedom of speech in publishing paid will not prejudice the public welfare. (De la Cruz v. Court
advertisement, no matter if it contained erroneous claims of Appeals)
and facts. Said publication was not “commercial” in the
sense that it communicated information, expressed · If assembly is to be held at a public place, permit for the
opinion, recited grievances, protested claimed abuses, use of such place, and not for the assembly itself, may be
and sought a financial support on behalf of a movement. validly required. Power of local officials is merely for
That the Times was paid for publishing the advertisement regulation and not for prohibition. (Primicias v. Fugoso)
is as immaterial as the fact that newspapers and books
are sold. · Permit for public assembly is not necessary if meeting is
to be held in: a private place; the campus of a
Newspapers do not forfeit the protection they enjoy government-owned or operated educational institution;
under speech freedom just because they publish paid and freedom park. (B.P. Blg. 880 - “The Public Assembly
advertisements. Otherwise, newspapers will be Act of 1985')
discouraged from carrying “editorial advertisements” and
so might shut off an important outlet for the · In JBL Reyes v. Bagatsing, retired J. JBL Reyes sought a
promulgation of information and ideas by persons who permit from the City of Manila to hold a march and rally
do not themselves have access to publishing facilities. on Oct 26, 1983 2-5pm from Luneta to gates of US
Embassy, and was denied by the Mayor due to Vienna
On errors: “Some degree of abuse is inseparable from the Convention Ordinance and fear of subversives may
proper use of every thing; and in no instance is this truer infiltrate the ranks of the demonstrators.
than that of the press.” Erroneous statement is inevitable
in free debate. Held: no justifiable ground to deny permit because Bill of
Rights will prevail over Vienna Ordinance should conflict
Moreover, criticism of official conduct does not lose its exist (none proven because 500m not measured from
constitutional protection merely because it effective gate to US Embassy proper) and fear of serious injury
criticism and hence diminishes their official reputations. cannot alone justify suppression of free speech and
Presence of clear and present danger of substantive evil assembly- only clear and present danger of substantive
must be proved. Actual Malice needs to be proved if a evil.
public official wants to recover damages for a defamatory
falsehood relating to his official conduct. “Even a false Notes: the Court is called upon to protect the exercise of
statement may be deemed to make a valuable the cognate rights to free speech and peaceful assembly…
contribution to public debate since it brings about the
clearer perception and livelier impression of truth, Tanada vs Bagatsing SC sustained the
produced by its collision with error.” petitioner's motion
compelling the mayor of
· In Gonzales v. Kalaw-Katigbak, Kapit sa Patalim was Manila to issue a permit to
classified as “For Adults Only” by the MTRCB and was hold a rally, but changed
suggested to have certain portions cut/ deleted. the meeting place to Ugarte
Field, a private park
Held: MTRCB do not have the power to exercise prior Malabanan vs Ramento (several students were
restraint. The power of the MTRCB is limited to the suspended for 1 year for
classification of films. conducting demonstration
in the premises of a
The test to determine whether a motion picture exceeds university outside the area
the bounds of permissible exercise of free speech and, permitted by the school
therefore should be censored, is the clear and present authorities) SC emphasized
danger test. that the students did not
shed their constitutional
Assembly and Petition rights to free speech at the
schoolhouse gate, and
· The right to assemble is not subject to prior restraint permitted the students to
and may not be conditioned upon the prior issuance of a re-enroll and finish their
permit or authorization from the government authorities. 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 right to free assembly and
vs PBM 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 right to organize does not
CA 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 the Court granted the
Gonzales 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.
Ayer Productions vs the tribunal upheld the
Judge Capulong 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
Sandiganbayan imputed charges of
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
· 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

1. Non-establishment Clause Two values sought to be protected by the non-

establishment clause:
· reinforces Sec. 6, Art. II on the separation of church and
State (1) Voluntarism – the growth of a religious sect as a social
force must come from the voluntary support of its
· other provisions which support this: Sec 2(5), Art. IX-C [a members because of the belief that both spiritual and
religious sect or denomination cannot be registered as a secular society will benefit if religions are allowed to
political party], Sec 5(2), Art. VI [no sectoral compete on their own intrinsic merit without benefit of
representative from the religious sector], and Sec 29 (2), official patronage.
Art. VI [prohibition against the use of public money or
property for the benefit of any religion, or of any priest, (2) Insulation of the political process from interfaith
minister or ecclsiastic], Sec. 28 (3), Art. VI [exemption dissension – voluntarism cannot be achieved unless the
from taxation of properties actually, directly and political process is insulated from religion and unless
exclusively used for religious purposes, Sec 4(2), Art XIV religion is insulated politics.
[citizenship requirement of
ownership of educational institutions except those owned Engel vs Vitale recitation by students in
by religious groups], Sec 29(2), Art VI [appropriation public schools in New York
allowed where the minister is employed in the armed of a prayer composed by
forces, penal institution or government-owned the Board of Regents was
orphanage or leprosarium] unconstitutional
Everson vs Board of US Supreme Court
Scope: The State Education sustained the law providing
free
(a) cannot set up a church; transportation for all
(b) cannot pass laws which aid one religion, all religions or schoolchildren without
prefer one over another; discrimination, including
(c) cannot influence a person to go to or remain away those attending parochial
from church against his will; nor schools
(d) force him to profess a belief or disbelief in any Board of Education vs US Supreme Court
religion. Allen sustained the law requiring
the
Rationale: petitioner to lend textbooks
free of charge to all
· to delineate boundaries between the two institutions; students from grades 7-12,
and including those attending
· to avoid encroachment by one against the other. private schools
In Everson and Allen, the government aid was given
directly to the student and parents, not to the church-
related school
· A union of Church and State would either: Adong vs Cheong Seng in line with the
◦ tend to destroy government and to degrade Gee constitutional principle of
religion; or equal treatment of all
◦ result in a conspiracy because of its composite religions, the State
strength recognizes the validity of
marriages performed in
· separation of church and state is not a wall of hostility 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 by arrogating to itself the
of the Philippines vs task of issuing halal
Office 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 where a civil right depends
of Manila 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
Ebralinag vs division
Superintendent of Schools
of
Cebu
People vs Zosa
Victoriano vs Elizalde Rope
Workers Union
American Bible Society vs
City of Manila
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
SC reversed Gerona vs
Sec. of Educ. , and
upheld the right of
petitioners to refute to
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.
invocation of religious
scruples in order to avoid
military service was
brushed aside by the SC
SC upheld the validity of
RA 3350, exempting
members of a religious
sect from being
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
Tolentino vs Sec. of the free exercise clause
Finance 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
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

· Compelling State Interest test [Estrada vs Escritor] the same within the limits prescribed by law shall not
be impaired except upon lawful order of the court.
· the constitution's religion clause's prescribe not a strict Neither shall the right to travel be impaired except in
bu abenevolent neutrality (which recognizes that the interest of national security, public safety, or
government mustpursue its secular goals and interests, public health, as may be provided by law.
but at the same time, strive to uphold religious liberty to
the greatest extent possible within flexible constitutional Liberty Guaranteed by Sec. 6 Art. III
limits 1. freedom to choose and change one's place of abode;
and
· benevolent neutrality could allow for accomodation 2. freedom to travel both within the country and outside
morality based on religion provided it does not offend the
compelling state interest test. Limitations
· Liberty of Abode – “upon lawful order of the court”
· two steps (as regards the test): · Right to Travel – “national security, public safety or
▪ inquire whether respondent's right to religious public health as may be provided by law”
freedom has been burdened; and
▪ ascertain respondent's sincerity in her religious Caunca vs Salazar 82 Phil Whether a maid had the
belief. 851 right to transfer to
another residence even if
· In Centeno vs Villalon-Pornillos, the Court held that she had not paid yet the
solicitiations for religious purposes requires not a prior amount advances by an
permit from DSWD as it is not included in solicitations for employment agency:
“charitable or public welfare purposes.” Yes. The fortunes of
business cannot be
Religious Tests controlled by controlling a
fundamental human
· Purpose: to stop government's clandestine attempts to freedom.
prevent a person from exercising his civil of political rights Human dignity and
because of his religious beliefs. freedom are essentially
spiritual – inseparable
· In Pamil v. Teleron, Sec. 2175 of the Revised from the idea of eternal.
Adminsitrative Code is questioned whether or not it is Money, power, etc. belong
consistent with the religious clause of the Constitution. to the ephemeral and
Said Code disqualifies an “ecclesiastic” from being elected perishable.
or appointed to a municipal office. Seven Justices voted Rubi vs Provincial Board The respondents were
to consider this a prohibited “religious test.” Five justices of Mindoro 1919 justified in requiring the
said it is not a religious test but a safeguard against the members of certain non-
constant threat of union of Church and State that has Christian tribes to reside in
 a reservation, for their 1988 health or public order, as
better education, may be provided by law.
advancement and An order temporarily
protection. The measure suspending the
was a legitimate exercise deployment of overseas
of police power. workers is constitutional
Villavicencio vs Lukban Prostitutes, despite being for having been issued in
1919 in a sense lepers, are not the interest of the safety
chattels but Philippine of OFWs, as provided by
citizens, protected by the the Labor Code.
same constitutional
guarantee of freedom of
abode. They may not be
compelled to change their
domicile in the absence of
a law allowing such.
Salonga vs Hermoso 97 the case became moot
SCRA 121 and academic when the
permit to travel abroad
was issued before the case
could be heard.
Lorenzo vs Dir. of Laws for the segregation
Health1927 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.
Manotok vs CA 1986 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. by PORFERIO JR. and MELFA SALIDAGA
Marcos vs Manglapus The liberty of abode and
1989 the right to travel includes
the right to leave, reside
and travel within one’s CODES AND NOTES ON PUBLIC INTERNATIONAL LAW
country but it does not NOTES ON PUBLIC INTERNATIONAL LAW
include the right to return
to one’s country.
NOTE: Court warned that
this case should not create
a precedent because CHAPTER 1
Marcos was a class in GENERAL PRINCIPLES
himself.
Philippine Association of Right to travel may be Nature and Scope
Service Exporters vs impaired in the interest of
Drilon national security, public
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.
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)

Sources of Public International Law This doctrine is followed in the Philippines as embodied in
1. International conventions Art. II, Sec. 2 of the 1987 Constitution which provides
2. International custom that: “The Philippines…adopts the generally accepted
3. The general principles of law recognized by civilized principles of international law as part of the law of the
nations. (e.g. prescription, pacta sunt servanda, and land…” However, no primacy is implied.
estoppel).
It should be presumed that municipal law is always
Distinction of Public International Law with Municipal enacted by each state with due regard for and never in
Law defiance of the generally accepted principles of
Municipal Law Public International Law international law. (Co Kim Chan v. Valdez Tan Keh).
1. Issued by a political 1. Not imposed upon but
superior for observance by simply adopted by states It is a settled principle of international law that a
those under its authority; as a common rule of sovereign cannot be permitted toset up his own
action among themselves; municipal law as a bar to a claim by foreign sovereign for
2. Consists mainly of 2. derived not from any a wrong done to the latter's subject. (US v Guatemala).
enactments from the law- particular legislation but
making authority of each from such sources as Constitution v. Treaty
state; international customs,
international conventions Generally, the treaty is rejected in the local forum but is
and the general principles upheld by international tribunals as ademandable
of law; obligation of the signatories under the principle of pacta
3. Regulates the relations 3. Applies to the relations sunt servanda.
of individuals among inter se of states and
themselves or with their other international Pacta Sunt Servanda – international agreements must be
own states; persons; performed in Good Faith. A treaty engagement is not a
4. Violations are redressed 4. Questions are resolved mere moral obligation but creates a legally binding
through local through state-to-state obligation on the parties. A state which has contracted a
administrative and judicial transactions ranging from valid international obligation is bound to make in its
processes; and, peaceful methods like legislation such modifications as may be necessary to
negotiation and ensure the fulfillment of the obligations undertaken.
arbitration to the hostile
arbitrament of force like The Philippine Constitution however contains provisions
reprisals and even war; empowering the judiciary to annul treaties thereby
and, establishing the primacy of the local law over the
5. breaches generally 5. responsibility of international agreement.
entail only individual infractions is usually
responsibility. collective in the sense
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 • Does not;
government to its
properties abroad;
• Brings about full • Limited to certain
diplomatic relations. 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.
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.

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.