CODES AND NOTES ON

CONSTITUTIONAL LAW II
NOTES AND CASES ON
CONSTITUTIONAL LAW II
I. THE INHERENT/ FUNDAMENTAL
POWERS OF THE STATE
1. Police Power
2. Power of Eminent Domain
3. Power of Taxation
They are inherent powers because they
belong to the very essence of
government and without them no
government can exist.
Similarities, Distinctions, and
Limitation
Similarities:
They are inherent in the State and may
be exercised by it without need of express
constitutional grant.
They are necessary and indispensable
The State cannot continue or be effective
unless it is able to

exercise them.
They are methods by which the State
interferes with private rights.
They all presuppose an equivalent
compensation for the private rights
interfered with.
They are exercised primarily by the
legislature.
Differences:
Police
Power

Eminen
t
Domain
As to
regulate regulate
regulation/e s both
s
xtent of
liberty
property
power
and
rights
propert only
y
As to who
only the governm
may
govern ent and
exercise
ment
some

Taxation

Regulates
property
rights
only

only the
governm
ent

As to the
property
taken

destroy
ed
because
it is
noxious
or
intende
d for
noxious
purpose
As to
intangib
Compensati le
on
altruisti
c
feeling
that the
person
has
contribu
ted to

private
entities
wholeso
me
-taken
for a
public
use or
purpose

full and
fair
equivale
nt of the
property
expropri
ated

wholeso
me
-taken for
a public
use or
purpose

protectio
n and
public
improve
ments for
the taxes
paid

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

A. POLICE POWER
Police Power is an inherent power of
the State to promote the welfare of
society by restraining and regulating the
use of liberty and property
- Most pervasive, the least limitable and
the most demanding of the three
powers

Justification of existence:
Salus populi est suprema lex the
welfare of the people is the supreme law;
Sic uteretuoutalienum non laedas a
person must use his own property so as
not to injure another
Scope:
(a) cannot be bargained away through the
medium of a treaty or contract (Stone v
Mississippi)
(b) may use taxing power as its
implement (Tio vs Videogram Regulatory
Board)
(c) may use eminent domain as its
implement (Assoc. of Small Landowners
vs Sec. of Agrarian Reform)
(d) could be given retroactive effect and
may reasonably impair vested rights or
contracts (police power prevails over
contract)

(e) dynamic, not static, and must move

with the moving society it is supposed to
regulate
Who may exercise Police Power?
(a) the Legislature (inherent)
(b) President (by delegation)
(c) administrative boards (by delegation)
(d) lawmaking bodies on all municipal
levels, including barangay (by delegation)
(e) Municipal governments / LGU's
(conferred by statute general welfare
clause of RA 7160)
Not being a political subdivision but
merely an executive authority it has no
police power. (MMDA v. Bel-Air Village
Assoc.)
Tests (Limitations):
(a) Lawful subject interests of the
public generally, as distinguished from
those of a particular class, require the
exercise of police power

(b) Lawful means the means employed

are reasonably necessary for the
accomplishment of the purpose and not
unduly oppressive upon individuals
Additional limitations (when
exercised by delegate) [Nachura
Reviewer]:
express grant by law (e.g. RA 7160)
within territorial limits (for LGU's)
must not be contrary to law (City
Government of Quezon City vsEricta)
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
greatpublic 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
unusefulenterprises.
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
processrequirement.
Reasons why ordinance is invalid are:
No reasonable connection between
means employed (absolute ban on
movement of carabeef) and purpose
sought to be achieved (conservation of
carabao for general welfare)
Unduly oppressive since petition not
given due process or opportunity to be
heard in proper court
B. EMINENT DOMAIN
Eminent Domain is the use of the
government of its coercive authority,
upon just compensation, to forcibly
acquire the needed property in order to

devote the same to public use. Eminent

domain is also known as expropriation, or
condemnation.
Who may Exercise?
1. The Congress (inherent)
2. President
3. various local legislative bodies
4. certain public corporations (e.g.
National Housing Authority)
5. Quasi-public corporations (e.g. PLDT)
Eminent Domain Distinguished from
Destruction from Necessity
Eminent Domain
Destruction from
Necessity
public right
arises from the
laws of society and
is vested in the
state or grantee,
acting under the
right and power of

private right
vested in every
individual with
which the right of
state or state
necessity has
nothing

the state or benefit

of the state

to do
comes under the
right of necessity, of
self-preservation
arises under the
laws of society or
society itself
cannot require the
conversion of the
property taken to
public use, nor is
there any need for
the payment of just
compensation

The Regional Trial Court (RTC) has the

jurisdiction over a complaint foreminent
domain.
Requisites of Eminent Domain:
1. Necessity of exercise
2. Private property
3. Taking

4. Public use
5. Just compensation
1. Necessity of Exercise
genuine necessity, and
must be of public character
When exercised by legislature
political question
When exercised by a delegate
justiciable question
determine the: (a) adequacy of
compensation; (b) necessity oftaking;
and (c) public
use character
2. Private Property
General Rule: anything that can come
under the dominion of man is subject to
expropriation
Exceptions: money and chose in action
(personal right not reduced into
possession, i.e. the right to
bring an action to recover debt, money or
thing)

 Private property already devoted to

public use cannot be expropriated by a
delegate acting under a general grant of
authority (City of Manila vs Chinese
Community)
3. Taking
Requisites (Republic vsCastellvi):
(a) expropriator must enter a private
property
(b) entry must be for more than a
momentary period
(c) entry must be under the warrant of
legal authority
(d) entry is for public use
(e) the owner is deprived of enjoying his
property
if taking is under police power, it is not
compensable
Taking Under Eminent Domain vs
Taking in Police Power :
Police Power
Eminent Domain

 the prejudice
suffered by the
individual property
owner is shared in
common with the
rest of the
community

the individual
suffers more than
his aliquot part of
the damages, i.e. a
special injury above
that
sustained by the
rest of the
community

In Amigable v. Cuenca, where there is

taking in the constitutional sense, the
property owner need not file a claim for
just compensation with the Commission
of Audit; he may go directly to the court
to demand payment. Arbitrary action of
the government shall be deemed a waiver
of its immunity from suit.
In City Government v. Ericta, an
ordinance of Quezon City, under theguise
of exercising police power, prescribed

that at least 6% of the totalarea of

memorial parks must be developed and
set aside for the burial of paupers. The
Court held that such ordinance is not an
exercise of police power but the taking of
private property for public use. Hence, to
satisfy the Constitution, there must be
compensation.
4. Public Use
Public use is whatever may be
beneficially employed for the general
welfare, including both direct or indirect
benefit or advantage to the public
In Heirs of Ardona v. Reyes, the Court
held that the Constitution understand
public use in a broad sense as meaning
public welfare. That includes development
of tourism.
5. Just Compensation

Just compensation is fair and full

equivalent payment for the loss
sustained, which is the measure of the
indemnity, not whatever gain would
accrue to the expropriating agency. It is
not market value per se. (Epza v. Dulay)
Where only part of the property
is expropriated: entitlement
toconsequential damages, if any
+ consequential benefits must be
deducted from the total compensation
provided consequential
benefits does not exceed
consequential damages
Payment of the correct amount +
Payment within a reasonable time
Form of Compensation: Money
(However, in Assoc. of Small
Landowners vs Sec. of Agrarian
Reform, payment is allowed to be
madepartly in bonds because it deals

with a revolutionary kind of

expropriation).
Transfer of Title: payment of just
compensation before title istransferred.
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 ofdamages
(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 ofEDSA can be undertaken,
which will cost government less, affect
lesserhomeowners, 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
toimpose only a burden upon the
owner of condemned property
withoutloss of title or possession for
public use subject to just
compensation
Case highlights that even services
may be subjected to eminentdomain
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
genuinenecessity 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 , dispensewith

the need to appoint commissioners to

determine just compensation.The Court
held that those decrees are
unconstitutional and void for
theyconstitute impermissible
encroachment on judicial prerogatives.
In Republic v. CA, the government
argued that the nullification shouldonly
have prospective effect. The Court
agreed. Thus under theoperative fact
doctrine, the effect of the invalidated law
was allowed toaffect transactions
completed before the declaration of
nullity.
C. POWER OF TAXATION
Power of Taxation is a method by
which contributions are exacted
frompersons 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
allimmovable and tangible personal
properties found in its territory, as wellas
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 discouragingand in

effect ultimately prohibiting certain things

or enterprises inimical topublic 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
animplement of police power

 Procedural :due process does not

require previous notice and hearingbefore
a law prescribing specific taxes on
specific articles may beenacted. However,
where the tax to be collected is to be
based on thevalue of the taxable
property, the taxpayer is entitled to be
notified of theassessment proceedings
and to be heard therein on the correct
valuationof 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 progressivesystem of taxation.)
Uniformity persons or things
belonging to the same class shall be
taxedat 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
futureconditions
(d) classification applies equally
well to all those belonging to the
sameclass
Equitable taxation based on the
capacity to pay
Equality in taxation tax shall be
strictly proportional to the relative valueof
the property
Progressive system of taxation the
rate increases as the tax baseincreases
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

taxingjurisdiction 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
oreducational 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 selfimplementing.
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 quasijudicialagencies 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 administrativecharges
cancellation of passport of a
person sought for the commission of
acrime
statutory presumptions
(d) Judgment rendered upon lawful
hearing (BancoEspanol 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 ofconduct to
avoid; and,
it leaves law enforcers unbridled
discretion in carrying out itsprovisions

and becomes arbitrary flexing of the

Governmentmuscle.
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 otherconstitutional
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 ones business is a liberty
protected by the 14thamendment.
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
states 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 (AngTibay 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 AngTibay vs. CIR, the Court laid
down cardinal requirements in
administrative proceedings which
essentially exercise a judicial or
quasijudicialfunction. These are:
(1) the right to a hearing, which includes
the right to present ones 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 onOrmoc
Sugar Central by name. OrmosSugar
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 (StonehillvsDiokno)
General Rule: only a judge may issue a
warrant.
Exception: orders of arrest may be
issues by administrative authorities but
only for the purpose of carrying out a final
finding of a violation of a law
Valid Warrantless Searches
[NOTE: each of these requires probable
cause, except stop and frisk]
1. searches incidental to lawful
arrest (rule 126, Rules of Court) for
dangerous weapons or anything that may
have been used or constitute in the
commission of an offense
Requisites:

1. the item to be searched was within

the arrestee's custody or area of
immediate control
2. the search was contemporaneous
with the arrest
2. searches of moving vehicles
In Aniag v. Comelec, twenty meters
away from the gate of the Batasan, a
truck was stopped and searched. The
motorists had not given any evidence of
suspicious behaviour nor had the
searching officers received any
confidential information about the car.
The Court held that the search was not
justifiable as a warrantless arrest of a
moving vehicle as there was no probable
cause.
3. searches of prohibited articles in
plain view
Requisites:
1. prior valid intrusion to a place

2. evidence was inadvertently

discovered by the police who has the
right to be there
3. evidence is immediately apparent
4. there is no further search
4. enforcement of customs law
5. consented searches
6. stop and frisk (limited protective
search of outer clothing for weapons)
In Terry v. Ohio, the stop-and-frisk rule
is stated thus: (W)here a police officer
observes unusual conduct which leads
him reasonably to conclude in the light of
his experience that criminal activity may
be afoot and that the person with whom
he is dealing may be armed and presently
dangerous, where in the course of
investigation of this behavior he identifies
himself as a policeman and makes
reasonable inquiries, and where nothing
in the initial stages of the encounter

serves to dispel his reasonable fear for his

own or others' safety, he is entitled for
the protection of himself and others in the
area to conduct a carefully limited search
of the outer clothing of such persons in an
attempt to discover weapons which might
be used to assault him.
Stop-and-frisk rule serves a two-fold
interest:
(1) the general interest of effective crime
prevention and detection;
(2) the more pressing interest of safety
and self-preservation. (Malacat)
7. routine searches at borders and
ports of entry
8. searches of businesses in the
exercise of visitorial powers
toenforce police regulations
Valid Warrantless Arrest
1. in flagrante delicto
2. hot pursuit

3. the offender escaped from the penal

establishment
Requisites of a valid warrant
Arrest Warrant Search
Warrant
1.
Probable
Cause
must refer
to one (1)
specific
offense

Such facts and

circumstances
which would lead
a reasonably
prudent man to
believe that an
offense has been
committed and
the person
sought to
bearrested had
committed it

Such facts
and
circumstan
ces which
would lead
a
reasonably
prudent
man to
believe
that an
offense
has been
committed
and the

2.
Personal
determin
ation of
probable
cause by
the judge

The judge
personally
determines the
existence
ofprobable
cause; it is
notnecessary
that he should
personally
examine the
complainant and

objects
sought in
the
connectio
n of the
offense
are in
the place
sought to
be
searched
The judge
must
personally
examinein
the form
of
searching
questions
and
answers...
in writing

his witnesses
and under
(SolivenvsMakasi oath...
ar)
the
complaina
Procedure:
nts and his
(1) personally
witnesses..
evaluate the
.
fiscal's report, or on facts
(2) if [1] is
personally
insufficient,
known to
disregard it and
them...
require the
and attach
submission of
to the
supporting
record
affidavits of
their
witnesses
sworn
Preliminary
statement
inquiry (task of s and
the judge)
affidavits.
determination of (Silva vs
probable cause
Presiding
for the issuance Judge)

of warrant of
released
arrest
Preliminary
investigation
proper (task of
theprosecutor)
ascertainmentwh
ether the
offender
shouldbe held for
trial or be
3. After
examinati
on under
oath or
affirmatio
n of the
complain
ant and
the
witnesses

Not merely
routinary but
must
be probing and
exhaustive

Not merely
routinary
but must
be probing
and
exhaustive

he may
produce
4.Particul
arity of
descriptio
n

General Rule: it
must contain the
name/s of
thepersons to be
arrested
Exception: if
there is some
descriptio
personae which
will enable the
officer to identify
the accused

General
Rule:
when the
description
therein is
as specific
as the
circumstan
ces will
ordinarily
allow.
Exception
: when no
other
more
accurate
and
detailed
description
could have

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

sufficient to induce a cautious man to rely

upon them.
In Corro v. Lising, the Affidavit of Col.
Castillo stated that in several issues of
the Philippine Times:... we found that the
said publication in fact foments distrust
and hatred against the government of the
Philippines. The Court held that the
affidavit does not establish probable
cause, and is nothing but conclusions of
law.
In Burgos v. Chief of Staff, a search
warrant for the newspaper WE Forum is
issued on the basis of a broad statement
of the military that Burgos, Jr. is in
possession of printing equipment and
other paraphernalia... used as means of
committing the offense of subversion.
The Court held that such allegation is not
sufficient to establish probable cause. It is
a mere conclusion of law unsupported by
particulars.

The Court also held that the search

warrant description has the sweeping
tenor making the document a general
warrant. The search warrant particularly
states:all printing equipment,
typewriters... of the WE Forum newspaper
and any other documents... It is not
required that the property to be searched
should be owned by the person against
whom the search warrant is directed. It is
sufficient that the property is under the
control or possession of the person
sought to be searched.
In Soliven v. Judge Makasiar, the
Court clarified the meaning of
personally in the search and seizure
clause. It stated that in arriving at a
conclusion as to the existence of
existence of probable cause, what is
required is personal determination and
not personal examination.
In Lim v. Felix, the Court held that the
judge in issuing a warrant of arrest cannot

rely solely on the certification or

recommendation of a prosecutor that
probable cause exists. The judge must
look at the report, the affidavits, the
transcripts of stenographic notes (if any),
and all other supporting documents
behind the Prosecutor's certification.
In Stonehill v. Diokno, the Court held
that the following description is
insufficient for it amounts to a general
warrant authorizing the officer to pick up
anything he pleases: Bookof 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
providepractical safeguards for the
practical reinforcement for the right
againstcompulsory self-incrimination, the
Court held that the prosecution may not
usestatements, whether exculpatory or
inculpatory, stemming from
custodialinterrogation of the defendant
unless it demonstrates the use of
proceduralsafeguards 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 whichresults in the
subject understanding what is
conveyed. (Peoplev. 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 theBoard 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 thingsto be done, without
running afould of the proscription against
testimonialcompulsion.
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 hisdefense 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 beforearraignment;
(b) Ask the accused if he desires the
aid of counsel;
(c) If the accused desires counsel, but
cannot afford one, a counsel deoficio
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 vsSandiganbayan, the
Court held that the Void for Vagueness
Doctrine merely requires a reasonable
degree of certaintyand 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 theinformation,
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 crossexamined 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 testificandumand
subpoena ducestecumfor 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 detainees 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
therestraint of the person
2. the court has no jurisdiction to
impose the sentence, or
3. an excessive penalty has been
imposed, since such sentence isvoid as to
the excess.
May be extended to cases by which
rightful custody of any person is withheld
from the person entitled thereto

 Whenmoral restraint is exerted

(Cauncavs 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.
(Gumabonvs 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 (Lansangvs
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
aidin the prosecution of the person
or persons responsible;
to identify witnesses and obtain
statements from them
concerningthe death or
disappearance;
to determine the cause, manner,
location and time of death
ordisappearance as well as any
pattern or practice that may
havebrought about the death or
disappearance;
to identify and apprehend the
person or persons involved in
thedeath or disappearance; and
to bring the suspected offenders
before a competent court.

iii.

iv.

v.
vi.

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
motuproprio, 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 thereturn, 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
motuproprio, 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, motuproprio or upon motion by any
party, order their revival when ready for
further proceedings. The petition shall be
dismissed with prejudice upon failure to
prosecute the case after the 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 Refers to disposition
only
of cases (All phases)

Criminal cases only

Judicial, quasijudicial 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 SELFINCRIMINATION
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'
compelledtestimony 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 selfincrimination when:
a) The question is relevant and
otherwise allowed evenif the answer
may tend to incriminate him or subject
him to civil liability
b) the question relates to past
criminality for which thewitness can no
longer be prosecuted
c) he has been previously granted
immunity under avalidly 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 selfincrimination. However, obtaining a
sample of the handwriting of the accused
would violate this right if he is charged for
falsification.
The accused cannot be compelled to
produce a private document in his
possession which might tend to
incriminate him. However, a third person
in custody of the document may be
compelled to produce it.

Right May be Waived:

- Either:
a) Directly, or
b) By failure to invoke it PROVIDED the
waiver is certain andunequivocal and
intelligently and
willingly made.
Section 18 (1), Art. III. No person
shall be detained solely by reason of
his political beliefs and aspirations.
J. RIGHT AGAINST INVOLUNTARY
SERVITUDE
Section 18 (2), Art. III. No
involuntary servitude in any form
shall exist except as a punishment
for a crime whereof the party shall
have been duly convicted.
Involuntary Servitude the condition
of one who is compelled by force,
coercion, or imprisonment, and against

his will, to labor for another, whether he is

paid or not.
Involuntary Servitude Includes
(1) Slavery civil relation in which one
man has absolute power over the life,
fortune and liberty of another;
(2) Peonage a condition of enforced
servitude by which the servitor is
restrained of his liberty and compelled to
labor in liquidation of some debtor
obligation, real or pretended, against his
will
General Rule
No involuntary service in any form shall
exist.
Exceptions
1. Punishment for a crime for which
the party shall have been duly convicted
(Sec. 18, Art. III)

2. Personal military or civil service in

the interest of national defense
(Sec. 4, Art. II)
3. Naval enlistment remain in service
until the end of voyage so that the crew
would not desert the ship, making it
difficult for the owners to recruit new
hands to continue the voyage (Robertson
vs Baldwin)
4. Posse comitatus in pursuit of
persons who might have violated the law,
the authorities might command all male
inhabitants of a certain age to assist them
(US vsPompeya)
5. Return to work order in industries
affected with public interest
(KapisananngManggagawasaKahoyvsGota
mco)
6. Patria Potestas unemancipated
minors are obliged to obey their parents

so long as they are under parental power

and to observe respect and reverence to
them always (Art. 311, Civil Code)
US vsPompeya

An Act providing for

the method by
which the people of
the town may be
called upon to
render assistance
for the protection of
the public and the
preservation of
peace and good
order is
constitutional. It
was enacted in the
exercise of the
police power of the
state and does not
violate the

Pollock vs Williams

constitutional
prohibition on
involuntary
servitude.
No indebtedness
warrants a
suspension of the
right to be free from
compulsory service,
and no state can
make the quitting of
work any
component of a
crime, or make
criminal sanctions
available for holding
unwilling persons to
labor.

K. CRUEL AND INHUMAN

PUNISHMENT
Section 19, Art. III.

1. Excessive fines shall not be

imposed, nor cruel, degrading or
inhuman punishment inflicted.
Neither shall death penalty be
imposed, unless, for compelling
reasons involving heinous crimes,
the Congress hereafter provides for
it. Any death penalty already
imposed shall be reduced to
reclusion perpetua.
2. The employment of physical,
psychological, or degrading
punishment against any prisoner or
detainee or the use of substandard
or inadequate penal facilities under
subhuman conditions shall be dealt
with by law.
When is a penalty cruel, degrading
and inhuman?

(1) A penalty is cruel and inhuman if it

involves torture or lingering suffering.
Ex. Being drawn and quartered.
(2) A penalty is degrading if it exposes a
person to public humiliation. Ex. Being
tarred and feathered, then paraded
throughout town.
Standards Used
(1) The punishment must not be so
severe as to be degrading to the dignity
of human beings.
(2) It must not be applied arbitrarily.
(3) It must not be unacceptable to
contemporary society
(4) It must not be excessive, i.e. it must
serve a penal purpose more effectively
than a less severe punishment would.
Excessive Fine

 A fine is excessive, when under any

circumstance, it is disproportionate to the
offense.
Note: Fr. Bernas says that the accused
cannot be convicted of the crime to which
the punishment is attached if the court
finds that the punishment is cruel,
degrading or inhuman.
Reason: Without a valid penalty, the law
is not a penal law.
L. NON IMPRISONMENT FOR DEBT
Section 20, Art. III. No person shall
be imprisoned for debt or nonpayment of a poll tax.
Forhumanitarian 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 excontractu.
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,
itsnon-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
prosecutions 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, thedismissal 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 VillegasKami)
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 twotiered 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.
2.
3.
4.
5.

letters
messages
telephone calls
telegrams, and
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 orderdemand 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 AntiWiretapping Law provides penalties
for specific violations of private
communication. Under Sec. 3 of the
Actallows 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 womans decision
whether or not to terminate her
pregnancy. But a womans 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 underprivileged. 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 orcourt. 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
thecommission of an illegal act;
The Writ of Certiorari a writ
ordering a person to correct
anerroneous act committed with grave
abuse of discretion; and
The Writ of Amparo a writ
designed to protect the most basic
right of a human being. These are the

right to life, liberty andsecurity

guaranteed by the Constitution.
R. ACCESS TO PUBLIC INFORMATION
Section 7, Art. III. The right of the
people to information on matters of
public concern shall be recognized.
Access to official records, and to
documents and papers pertaining to
official acts, transactions, or
decisions, as well as to government
research data used as basis for
policy development, shall be
afforded the citizen, subject to such
limitations as may be provided by
law.
the citizenry has a right to know what is
going on in the country and in his
government so he can express his views
thereon knowledgeably and intelligently.
Rights Guaranteed

1. Right to information on matters of

public concern ; and
2. Corollary right of access to official
records and documents.
These are political rights that are
available to citizens only (Bernas,
Philippine Constitution, p. 85).
Limitations: As may be provided by
law
Valmonte v
Belmonte 1989

The people have a

right to access
official records but
they cant compel
custodians of official
records to prepare
lists, abstracts,
summaries and the
like, such not being

based on a
demandable legal
right.

Baldoza v Dimaano
1976

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.
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
Personal interest is
Service Commission not required in
1987
asserting the 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
Public concern (def.)
1998
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 theirwishes
safely can be carried out.
Modes of Expression
(a) Oral and written language
(b) Symbolisms (e.g. bended knee, salute
to the flag, cartoons)
Elements of Freedom of Expression
(1) Freedom from prior restraint or
censorship
(2) Freedom from subsequent punishment

Freedom From Previous Restraint or

Censorship
Section 4, Art. III. No law shall be
passed abridging the freedom of
speech, of expression, or of the
press, or the right of the people
peaceably to assemble and petition
the government for redress of
grievances.
Censorship conditions the exercise of
freedom of expression upon the prior
approval of the government. Only those
ideas acceptable to it are allowed to be
disseminated.
Censor, therefore, assumes the role of
arbiter for the people, usually applying his
own subjective standards in determining
the good and the not. Such is anathema
in a free society.

 In New York Times v. United States,

the Court held that prohibition of prior
restraint is not absolute, although any
system of prior restraint comes to court
bearing a heavy presumption against its
constitutionality.
In Near v. Minnesota, the exceptions
to the prohibition of prior restraint is
enumerated by the Court, thus: When a
nation is at war, many things that might
be said in time of peace are such a
hindrance to its effort .... Noone would
question but that government might
prevent actual obstruction to its recruiting
service or the publication of sailing dates
of transports or the number or location of
troops.... The security of the community
life may be protected against incitements
to acts of violence and the overthrow by
force of orderly government.
In SWS v. Comelec, Sec. 1 of RA No.
9006, the Fair Election Act says that
surveys affecting national candidates

shall not be published fifteen(15) days

before an election and surveys affecting
local candidates shall not be published
seven days before an election. The
provision is challenged as violative of
freedom of expression. The Court held
that as prior restraint, the rule is
presumed to be invalid. The power of the
Comelec over media franchises is limited
to ensuring equal opportunity, time,
space and the right to reply as well as to
reasonable rates of charges for the use of
media facilities for public information
and forums among candidates. Here the
prohibition of speech is direct, absolute
and substantial. Nor does the rule pass
the O'Brien test for content related
regulation because (1) it suppresses one
type of expression while allowing other
types such as editorials, etc. and (2) the
restriction is greater than what is needed
to protect government interest because
the interest can be protected by narrower
restriction such as subsequent
punishment.

 In Re: Request for Radio-TV

Coverage of the Estrada Trial, the
Court held that the propriety of the
Estrada trial involves the weighing out of
the constitutional guarantees of freedom
of the press and the right to public
information, on the one hand, and the
fundamental rights of the accused, on the
other hand, along with the constitutional
power of a court to control its proceedings
in ensuring a fair and impartial trial...
With the possibility of losing not only the
precious liberty but also the very life of an
accused, it behooves all to make
absolutely certain that an accused
receives a verdict solely on the basis of a
just and dispassionate judgment...
The doctrine of freedom of speech was
formulated primarily for the protection of
core speech, i.e., speech which
communicates political, social or religious
ideas. Commercial speech, however, does
not.

Grosjeanvs
American Press Co.

Burgos vs Chief of
Staff

Mutucvs COMELEC

There need not be

total suppression;
even restriction of
circulation
constitutes
censorship
the search,
padlocking and
sealing of the
offices of
Metropolitan Mail
and We Forum by
military authorities,
resulting in the
discontinuance of
publication of the
newspapers, was
held to be prior
restraint
the COMELEC
prohibition against

the use of taped

jingles in the mobile
units used in the
campaign was held
to be
unconstitutional, as
it was in the nature
of censorship
Sanidadvs COMELEC the Court annulled
the COMELEC
prohibition against
radio commentators
or newspaper
columnists from
commenting on the
issues involved in
the scheduled
plebiscite on the
organic
law creating the
Cordillera
Autonomous Region

as an
unconstitutional
restraint on freedom
of expression
But...
Gonzales vs
COMELEC

the Court upheld

the validity of the
law which
prohibited, except
during the
prescribed election
period, the making
of speeches,
announcements or
commentaries for or
against the election
of any party or
candidate for public
office.
JUSTIFICATION: the
inordinate

Iglesiani Cristo vs
CA

preoccupation of
the people with
politics tended
toward the neglect
of the other serious
needs of the nation
and the pollution of
its suffrages.
The Board of Review
for Motion Pictures
and Television
(BRMPT) has the
authority to review
the petitioner's
television program.
However, the Board
acted with grave
abuse of discretion
when it gave an Xrating to the TV
program on the
ground of attacks

PrimiciasvsFugosos

National Press Club

vs COMELEC

against another
religion. Such a
classification can be
justified only if there
is a showing that
the tv program
would create a clear
and present danger
of an evil which the
State ought to
prevent.
The respondent
mayor could only
reasonably regulate,
not absolutely
prohibit, the use of
public places for the
purpose indicated.
the Supreme Court
upheld the validity
of Sec. 11(b), RA
6646, which

prohibited any
person making use
of the media to sell
or to give free of
charge print space
or air time for
campaign
or other political
purposes except to
the COMELEC. This
was held to be
within the power of
the COMELEC to
supervise the
enjoyment or
utilization of
franchises for the
operation of
media of
communication and
information, for the
purpose of ensuring

Osmeavs
COMELEC

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.
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.
Adiongvs 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

Gonzales vs
katigbak

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.
petitioner
questioned the
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 solely by reason of
his political beliefs and aspirations.
Without this assurance, the individual
would hesitate to speak for fear that he
might be held to account for his speech,
or that he might be provoking the
vengeance of the officials he may have
criticized.
Not absolute; subject to police power
and may be regulated (freedom of
expression does not cover ideas offensive
to public order)

Right of students to free speech in

school premises not absolute
General Rule: a student shall not be
expelled or suspended solely on the basis
of articles he has written
Exception: when the article materially
disrupts class work or involves substantial
disorder or invasion of rights of others,
the school has the right to discipline its
students (in such a case, it may expel or
suspend the student)
Tests of valid governmental
interference
(criteria in determining the liability of the
individual for ideas expressed by him) :
1. Clear and present danger rule
2. Dangerous tendency doctrine
3. Balance of interest test

1. Clear and Present Danger Rule

when words are used in such
circumstance and of such nature as to
create a clear and present danger that
will bring about the substantive evil that
the State has a right to prevent. (As
formulated by Justice Holmes in Schenck
v. United States)
Clear causal connection with the
danger of the substantive evil arising
from the utterance
Present time element; imminent and
immediate danger (the danger must not
only be probable but also inevitable).
(Gonzales v. Comelec)
In ABS-CBN v. Comelec, the Comelec
banned exit polls in the exercise of its
authority to regulate the holders of media
franchises during the lection period. It
contends that an exit poll has the
tendency to sow confusion considering
the randomness of selecting

interviewees.... However, the Court said

that exit polls constitute an essential part
of the freedoms of speech and of the
press. Hence, the Comelec cannot ban
totally in the guise of of promoting clean,
honest, orderly and credible elections.
The ban does not satisfy the clear and
present danger rule because the evils
envisioned are merely speculative.
Terminiellovs City of (speech inside an
Chicago
auditorium with 800
persons)
speech is often
provocative and
challenging. hence,
fighting words are
not sufficient to
convict a person
absent a clear and
present danger of a
serious substantive
evil

PrimiciasvsFugosos

Navarro vs Villegas

The respondent
mayor could only
reasonably regulate,
not absolutely
prohibit, the use of
public places for the
purpose indicated.
the condition of
Manila at that time
did not justify the
mayor's fears. there
was no clear and
present danger.
decided in 1947
(compare with
Primicias case)
SC sustained
respondent mayor's
act of refusing to
issue a permit
enabling students to
hold a public rally.

Reyes vsBagatsing

Mayor feared the

rally would result to
public disorder.
- decided in 1970
the denial of a
permit to hold a
public rally was
invalid as there was
no showing of the
probability of a clear
and present danger
of an evil that might
arise as a result of
the meeting. The
burden of proving
such eventually
rests on the Mayor.

2. Dangerous Tendency Doctrine if

the words uttered create a dangerous
tendency of an evil which the State has
the right to prevent.(Cabansag
v.Fernandez)

 Justice Holmes, critique of this doctrine:

Every idea is an incitement. If believed, it
is acted on unless some other belief
outweighs it, or some failure of energy
stifles the movement at its birth.
Bayan vs Executive
Secretary Ermita

Cabansagvs
Fernandez

(f) the Calibrated

Pre-emptive
Response Policy is
null and void.
Respondents are
enjoined from using
it and to strictly
observe the
requirements of
maximum
tolerance.
It is not necessary
that some definite
or immediate acts
of force or violence

People vs Perez

be advocated. It is
sufficient that such
acts be advocated
in general terms. A
mere tendency
toward the evil was
enough.
Accused declared:
The Filipinos like
myself must use
bolos for cutting off
(Governor- General)
Wood's head for
having
recommended a bad
thing for the
Filipinos, for he has
killed our
independence. He
was sentenced to
jail.

3. Balance of Interest Test when

particular conduct is regulated in the
interest of public order, and the
regulation results in an indirect,
conditional, partial abridgment of speech,
the duty of the courts is to determine
which of the two conflicting interests
demands the greater protection under the
circumstances presented. (American
Communications Association v.
Douds)
CLEAR
AND
PRESENT
DANGER
RULE
liberty is
preferred

DANGERO BALANCE OF
US
INTEREST RULE
TENDENCY
RULE
Authority is the issue is
preferred
resolved in the
light of the
peculiarcircumst
ances 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 States 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 ones expression of belief in
a candidate or ones opinion ofhis or her
qualifications,
If it cuts off the flow of media reporting
If the regulatory measure bears no clear
and reasonable nexus with
theconstitutionally 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)
its a matter of public interest; and 3)
public figures have the opportunity and
resources to rebut whatever is said
against them. (Policarpiovs Manila Times);
( New York Times vs Sullivan)

 In New York Times v. Sullivan, The

New York Times is protected under the
freedom of speech in publishing paid
advertisement, no matter if it contained
erroneous claims and facts. Said
publication was not commercial in the
sense that it communicated information,
expressed opinion, recited grievances,
protested claimed abuses, and sought a
financial support on behalf of a
movement. That the Times was paid for
publishing the advertisement is as
immaterial as the fact that newspapers
and books are sold.
Newspapers do not forfeit the protection
they enjoy under speech freedom just
because they publish paid
advertisements. Otherwise, newspapers
will be discouraged from carrying
editorial advertisements and so might
shut off an important outlet for the
promulgation of information and ideas by
persons who do not themselves have
access to publishing facilities.

On errors: Some degree of abuse is

inseparable from the proper use of every
thing; and in no instance is this truer than
that of the press. Erroneous statement is
inevitable in free debate.
Moreover, criticism of official conduct
does not lose its constitutional protection
merely because it effective criticism and
hence diminishes their official
reputations. Presence of clear and present
danger of substantive evil must be
proved. Actual Malice needs to be proved
if a public official wants to recover
damages for a defamatory falsehood
relating to his official conduct. Even a
false statement may be deemed to make
a valuable contribution to public debate
since it brings about the clearer
perception and livelier impression of
truth, produced by its collision with error.
In Gonzales v. Kalaw-Katigbak,
KapitsaPatalim was classified as For

Adults Only by the MTRCB and was

suggested to have certain portions cut/
deleted.
Held: MTRCB do not have the power to
exercise prior restraint. The power of the
MTRCB is limited to the classification of
films.
The test to determine whether a motion
picture exceeds the bounds ofpermissible
exercise of free speech and, therefore
should be censored, is the clear and
present danger test.
Assembly and Petition
The right to assemble is not subject to
prior restraint and may not be
conditioned upon the prior issuance of a
permit or authorization from the
government authorities. However, the
right must be exercised in such a way
that it will not prejudice the public

welfare. (De la Cruz v. Court

ofAppeals)
If assembly is to be held at a public
place, permit for the use of such place,
and not for the assembly itself, may be
validly required. Power of local officials is
merely for regulation and not for
prohibition. (Primicias v.Fugoso)
Permit for public assembly is not
necessary if meeting is to be held in: a
private place; the campus of a
government-owned or operated
educational institution; and freedom park.
(B.P. Blg. 880 - The Public Assembly
Actof 1985')
In JBL Reyes v. Bagatsing, retired J.
JBL Reyes sought a permit from the City
of Manila to hold a march and rally on Oct
26, 1983 2-5pm from Luneta to gates of
US Embassy, and was denied by the
Mayor due to Vienna Convention

Ordinance and fear of subversives may

infiltrate the ranks of the demonstrators.
Held: no justifiable ground to deny permit
because Bill of Rights will prevail over
Vienna Ordinance should conflict exist
(none proven because 500m not
measured from gate to US Embassy
proper) and fear of serious injury cannot
alone justify suppression of free speech
and assembly- only clear and present
danger of substantive evil.
Notes: the Court is called upon to protect
the exercise of the cognate rights to free
speech and peaceful assembly
TanadavsBagatsing

SC sustained the
petitioner's motion
compelling the
mayor of Manila to
issue a permit to
hold a rally, but
changed the

meeting place to
UgarteField, a
private park
MalabananvsRamen (several students
to
were suspended for
1 year for
conducting
demonstration in
the premises of a
university outside
the area permitted
by the school
authorities) SC
emphasized that the
students did not
shed their
constitutional rights
to free speech at
the schoolhouse
gate, and permitted
the students to reenroll and finish

Villarvs TIP

their studies.
(several students
were barred from reenrollment 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

Non vs Dames

those who exercise

their constitutional
rights to peaceful
assembly.
SC abandons its
ruling in Alcuazvs
PSBA (that
enrolment of a
student is a
semester-tosemester 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

PBM Employees
Assocvs PBM

the school
gate.
right to free
assembly and
petition prevails
over economic
rights.

Tests of a lawful assembly

(1) Purpose Test
ideally, the test should be the purpose
for which the assembly is held, regardless
of the auspices under which it is
organized
(2) Auspices Test
EvengelistavsEarnshaw: 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
Assocvs CA

right to organize
does not carry with
it right to strike

VictorianovsElizalde
Rope Workers' Union
Occenavs COMELEC right of association
was not violated
where political
parties were
prohibited from
participating in the
barangay elections
to insure the nonpartisanship 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 vsKottinger

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

People vs Go Pin

Pita vs CA

their native attire

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.
SC declared that the
determination of
what is
obscene is a judicial

Miller vs California

function.
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
tomake definitions
of obscenity.
Obscenity is a
hodgepodge.
- The Courts should not apply a national
standard but the standard of the
communityin 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 Courts Jurisprudence teaches

that it is the publishers responsibility to
abide by that communitys 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
Lagunzadvs Sotto
the Court granted
Vda. de Gonzales
the petition to
restrain the public
exhibition of the
movie Moises
Padilla Story,
because it
contained
fictionalized
embellishments.

Ayer Productions vs
Judge Capulong

Being a public figure

does not destroy
one's right to
privacy.
the tribunal upheld
the primacy of
freedom of
expression over
Enrile's right to
privacy, because
Enrile was a public
figure and a public
figure's right
to privacy is
narrower than that
of an ordinary
citizen. Besides, the
movie Four Days of
Revolution (sabini
Cruz) / A
Dangerous Life
(sabiniNachura) /

US vsBustos

People vs Alarcon

The Four Day

Revolution
(sabisa case)
would not be
historically faithful
without including
therein the
participation of
Enrile in the EDSA
revolution.
SC compared
criticism of official
conduct to a
scalpel that
relieves the
abscesses of
officialdom
newspaper
publications tending
to impede,
obstruct, embarrass
or influence the

In re Jurado

courts in
administering
justice in a pending
suit or proceeding
constitutes criminal
contempt which is
summarily
punishable by the
courts.
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

In re Sotto

In re Tulfo

contempt. It is not
necessary that
publication actually
obstructs the
administration of
justice, it is enough
that it tends to do
so.
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
Tulfo's
SangkatutaknaBob

In re Laureta

o 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.
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

Zaldivarvs
Sandiganbayan

questioning their
decision
a member of the
Bar who 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 Aglipayvs Ruiz religion is defined as

a profession of faith to an active power
that binds and elevates man to his
Creator.
Two Guarantees Contained Section 5,
Art. III of the Constitution
(1) Non-establishment clause
(2) Free exercise of religious profession
and worship
1. Non-establishment Clause
reinforces Sec. 6, Art. II on the
separation of church and State
other provisions which support this: Sec
2(5), Art. IX-C [a religious sect or
denomination cannot be registered as a
political party], Sec 5(2), Art. VI [no
sectoral representative from the religious
sector], and Sec 29 (2), Art.VI [prohibition
against the use of public money or
property for the benefit of any religion, or

of any priest, minister or ecclsiastic], Sec.

28 (3), Art. VI [exemption from taxation of
properties actually, directly and
exclusively used for religious purposes,
Sec 4(2), Art XIV [citizenship requirement
of
ownership of educational institutions
except those owned by religious groups],
Sec 29(2), Art VI [appropriation allowed
where the minister is employed in the
armed forces, penal institution or
government-owned orphanage or
leprosarium]
Scope: The State
(a) cannot set up a church;
(b) cannot pass laws which aid one
religion, all religions or prefer one over
another;
(c) cannot influence a person to go to or
remain away from church against his will;
nor
(d) force him to profess a belief or
disbelief in any religion.

Rationale:
to delineate boundaries between the
two institutions; and
to avoid encroachment by one against
the other.

A union of Church and State would

either:
tend to destroy government and to
degrade religion; or
result in a conspiracy because of its
composite strength
separation of church and state is not a
wall of hostility
The Government is neutral. It protects
all, but prefers none and disparages none.
Freedom of religion includes freedom
from religion; the right to worship
includes right not to worship

Two values sought to be protected by

the non-establishment clause:
(1) Voluntarism the growth of a
religious sect as a social force must come
from the voluntary support of its
members because of the belief that both
spiritual and secular society will benefit if
religions are allowed to compete on their
own intrinsic merit without benefit of
official patronage.
(2) Insulation of the political process
from interfaith dissension
voluntarism cannot be achieved unless
the political process is insulated from
religion and unless religion is insulated
politics.
Engel vs Vitale

recitation by
students in public
schools in New York

of a prayer
composed by the
Board of Regents
was unconstitutional
Everson vs Board of US Supreme Court
Education
sustained the law
providing free
transportation for all
schoolchildren
without
discrimination,
including those
attending parochial
schools
Board of Education US Supreme Court
vs Allen
sustained the law
requiring the
petitioner to lend
textbooks free of
charge to all
students from
grades 7-12,

including those
attending private
schools
In Everson and Allen, the government aid
was given directly to the student and
parents, not to the church-related school
Adongvs Cheong
in line with the
Seng Gee
constitutional
principle of equal
treatment of all
religions, the State
recognizes the
validity of marriages
performed in
conformity with the
rites of
Mohammedan
religion
Rubivs Provincial
the expression nonBoard
Christian in nonChristian tribes
was not meant to

discriminate. It
refers to degree of
civilization, not to
the religious belief.
Islamic Da'wah
by arrogating to
Council of the
itself the task of
Philippines vs Office issuing halal
of Exec. Sec.
certifications, the
State has, in effect,
forced Muslims to
accept its own
interpretation of the
Qur'an and Sunna
on halal food.

Intramural Religious Dispute

outside the jurisdiction of the secular
authorities
Gonzales vs

where a civil right

Archbishop of
Manila

Fonacier v CA

depends upon some

matter pertaining to
ecclesiastical
affairs, the civil
tribunal tries the
civil right and
nothing more.
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 vsBarangan 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
Ebralinagvs division SC reversed Gerona
Superintendent of
vs Sec. of Educ. ,
Schools of
and
Cebu
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.
People vsZosa
invocation of
religious scruples in
order to avoid
military service was
brushed aside bythe
SC
VictorianovsElizalde SC upheld the
Rope Workers Union validity of RA 3350,
exempting
members of a
religious sect from
being

American Bible
Society vs City of
Manila

Tolentinovs Sec. of

compelled to join a
labor union
the constitutional
guarantee of free
exercise
carries with it the
right to disseminate
information, and
any restraint of such
right can be justified
only on the ground
that there is a clear
and present danger
of an evil which the
State has the right
to prevent; Hence,
City ordinance
imposing license
fees to on sale is
inapplicable to the
society
the free exercise

Finance

clause does not

prohibit imposing a
generally applicable
sales and use tax on
the sale of religious
materials; the
registration fee is
not imposed for
theexercise of a
privilege, but only
for the purposeof
defraying part of the
cost of registration

Compelling State Interest test

[Estrada vsEscritor]
the constitution's religion clause's
prescribe not a strict buabenevolent
neutrality (which recognizes that
government mustpursue its secular goals
and interests, but at the same time, strive

to uphold religious liberty to the greatest

extent possible within flexible
constitutional limits
benevolent neutrality could allow for
accomodation morality based on religion
provided it does not offend the
compelling state interesttest.
two steps (as regards the test):
inquire whether respondent's right
to religious freedomhas been burdened;
and
ascertain respondent's sincerity in
her religious belief.
In CentenovsVillalon-Pornillos, the
Court held that solicitiations for religious
purposes requires not a prior permit from
DSWD as it is not included in solicitations
for charitable or public welfare
purposes.
Religious Tests

 Purpose: to stop government's

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

invocation of

religious scruples in
order to avoid
military service was
brushed aside by
the SC

V. RIGHT TO TRAVEL
Section 6, Art. III. The liberty of
abode and of changing the same
within the limits prescribed by law
shall not be impaired except upon
lawful order of the court. Neither
shall the right to travel be impaired
except in the interest of national
security, public safety, or public
health, as may be provided by law.
Liberty Guaranteed by Sec. 6 Art. III
1. freedom to choose and change one's
place of abode; and

2. freedom to travel both within the

country and outside
Limitations
Liberty of Abode upon lawful order of
the court
Right to Travel national security,
public safety or public health as may be
provided by law
Cauncavs Salazar
82 Phil 851

Whether a maid had

the right to transfer
to another
residence even if
she had not paid yet
the amount
advances by an
employment
agency:
Yes. The fortunes of
business cannot be
controlled by
controlling a

Rubivs Provincial
Board of Mindoro
1919

fundamental human
freedom.
Human dignity and
freedom are
essentially spiritual
inseparable from
the idea of eternal.
Money, power, etc.
belong to the
ephemeral and
perishable.
The respondents
were justified in
requiring the
members of certain
non-Christian tribes
to reside in a
reservation, for their
better education,
advancement and
protection. The
measure was a

legitimate exercise
of police power.
Villavicencio
Prostitutes, despite
vsLukban1919
being in a sense
lepers, are not
chattels but
Philippine citizens,
protected by the
same constitutional
guarantee of
freedom of abode.
They may not be
compelled to
change their
domicile in the
absence of a law
allowing such.
SalongavsHermoso9 the case became
7 SCRA 121
moot and academic
when the permit to
travel abroad was
issued before the

case could be
heard.
Lorenzo vs Dir.
Laws for the
ofHealth1927
segregation of
lepers have been
provided the world
over and is
supported by high
scientific authority.
Such segregation is
premised on the
duty to protect
public health.
Manotokvs CA 1986 Bail posted in a
criminal case, is a
valid restriction on
theright to travel.
By its nature, it may
serve as a
prohibition on an
accused from
leaving the

Marcos
vsManglapus1989

Philippine

jurisdiction of the
Philippines where
orders of Philippine
courts would have
no binding force.
The liberty of abode
and the right to
travel includes the
right to leave,
reside and travel
within ones country
but it does not
include the right to
return to ones
country.
NOTE: Court warned
that this case
should not create a
precedent because
Marcos was a class
in himself.
Right to travel may

Association of
Service Exporters
vsDrilon
1988

be impaired in the
interest of national
security, public
health or public
order, as may be
provided by law.
An order
temporarily
suspending the
deployment of
overseas workers is
constitutional for
having been issued
in the interest of the
safety of OFWs, as
provided by the
Labor Code.

by PORFERIO JR. and MELFA

SALIDAGA

CODES AND NOTES ON PUBLIC

INTERNATIONAL LAW
NOTES ON PUBLIC INTERNATIONAL
LAW

CHAPTER 1
GENERAL PRINCIPLES
Nature and Scope
Public International Law It is the
body of rules and principles that are
recognized as legally binding and which
govern the relations of states and other
entities invested with international legal
personality. Formerly known as law
ofnations coined by Jeremy Bentham in
1789.

Three Major Parts of Public

International Law
1. Laws of Peace normal relations
between states in the absence of war.
2. Laws of War relations between
hostile or belligerent states during
wartime.
3. Laws of Neutrality relations
between a non-participant state and a
participant state during wartime. This also
refers to the relations among nonparticipating states.
Sources of Public International Law
1. International conventions
2. International custom
3. The general principles of law
recognized by civilized nations. (e.g.
prescription, pactasuntservanda, and
estoppel).
Distinction of Public International
Law with Municipal Law
Municipal Law
Public
International Law

1. Issued by a
1. Not imposed
political superior for upon but simply
observance by
adopted by states
those under its
as a common rule of
authority;
action among
themselves;
2. Consists mainly
2. derived not from
of enactments from any particular
the law-making
legislation but from
authority of each
such sources as
state;
international
customs,
international
conventions and the
general principles of
law;
3. Regulates the
3. Applies to the
relations of
relations inter se of
individuals among
states and other
themselves or with international
their own states;
persons;
4. Violations are
4. Questions are

redressed through
local administrative
and judicial
processes; and,

resolved through
state-to-state
transactions ranging
from peaceful
methods like
negotiation and
arbitration to the
hostile arbitrament
of force like
reprisals and even
war; and,
5.breaches
5. responsibility of
generally entail only infractions is usually
individual
collective in the
responsibility.
sense that it
attaches directly to
the state and not to
its nationals.
Public International Law in Relation
to Municipal Law

In the paquete Habana, Justice Gray

said: the law of nations, although not
specially adopted by the Constitution or
any municipal act, is essentially a part of
the law of the land.
Doctrine of Incorporation the rules of
international law form part of the law of
the land and no further legislative action
is needed to make such rules applicable
in the domestic sphere. (Sec. of Justice
v. Lantion GRN 139465, Jan. 18,2000)
This doctrine is followed in the Philippines
as embodied in Art. II, Sec. 2 of the 1987
Constitution which provides that: The
Philippinesadopts the generally
accepted principles of international law as
part of the law of the land However, no
primacy is implied.
It should be presumed that municipal law
is always enacted by each state with due
regard for and never in defiance of the
generally accepted principles of

international law. (Co Kim Chan v.

Valdez Tan Keh).
It is a settled principle of international law
that a sovereign cannot be permitted
toset up his own municipal law as a bar to
a claim by foreign sovereign for a wrong
done to the latter's subject. (US v
Guatemala).
Constitution v. Treaty
Generally, the treaty is rejected in the
local forum but is upheld by international
tribunals as ademandable obligation of
the signatories under the principle of
pactasuntservanda.
PactaSuntServanda international
agreements must be performed in Good
Faith. A treaty engagement is not a mere
moral obligation but creates a legally
binding obligation on the parties. A state
which has contracted a valid international
obligation is bound to make in its

legislation such modifications as may be

necessary to ensure the fulfillment of the
obligations undertaken.
The Philippine Constitution however
contains provisions empowering the
judiciary to annul treaties thereby
establishing the primacy of the local
law over the international
agreement.
Art. X, Sec. 2(2) provides that all cases
involving the constitutionality of any
treaty, executive or law shall be heard
and decided by the Supreme Court en
banc, and no treaty, executive agreement
or law may be declared unconstitutional
without the concurrence of ten justices.
The Constitution authorizes the
nullification of a treaty not only when it
conflicts with the Constitution but also
when it runs counter to an act of
Congress. (Gonzales v. Hechanova).

Basis of Public International Law

Three theories on this matter:
1. The Naturalist under this theory,
there is a natural and universal principle
of right and wrong, independent of any
mutual intercource or compact, which is
supposed to be discovered and
recognized by every individual through
the use of his reason and his conscience.
2. The Positivist under this theory, the
binding force of international law is
derived from the agreement of sovereign
states to be bound by it. It is not a law of
subordination but of coordination.
3. The Eclectics or Groatians this
theory offers both the law of nature and
the consent of states as the basis of
international law. It contends that
thesystem 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
andhumanity.
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 legalconcept, 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; hostishumani 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

tounable to provide for peoples 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
owninternal and external affairs.
However international law is
concerned only with this freedom in so
far asit relates to external affairs;
hence, a state which is not subject to
dictationfrom 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 nonsuability,inviolability of its premises and
archives, and exemption from taxation.
It can assert a diplomatic claim on
behalf of its officials, and
treatiesmay also be concluded by it
through the General Assembly, the
SecurityCouncil, 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
ofassuring to the Holy See absolute and
visible independence and of
guaranteeingto 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 andparcel
of the parent state, through which all its
external relations are transactedwith
other states.
Nevertheless, such entities have been
allowed on occasion to participate
intheir own right in international
undertakings and granted practically

the statusof a sovereign state. It is when

acting in this capacity that colonies
anddependencies are considered
international persons.
5. Mandates and Trust Territories
The system of mandates was established
after the first World War in order toavoid
outright annexation of the
underdeveloped territories taken from
thedefeated powers and to place their
administration under some form
ofinternational 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 fortheir
administration.

These territories enjoy certain rights

directly available to them under the
United Nations Charter that vest them
with a degree of international personality.
Theyare not however sovereign.
6. Belligerent Communities
When a portion of the population rises up
in arms against the legitimategovernment
of the state, and such conflict widens and
aggravates, it maybecome necessary to
accord the rebels recognition of
belligerency.
For purposes of the conflict, and pending
determination of whether or not
thebelligerent community should be fully
recognized as a state, it is treated as
aninternational person and becomes
directly subject to the laws of war
andneutrality.

7. International Administrative
Bodies
Certain administrative bodies created by
agreement among states may be
vestedwith international personality (e.g.
International Labor Organization,
WorldHealth Organization).
Two Requisites for International
Administrative Bodies to be Vested
withInternational 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 lawwho
can act only through the instrumentality
of his own state in matters involvingother
states.

Of late, however, the view has grown

among many writers that the individual
isnot merely an object but a subject of
international law. One argument is that
theindividual is the basic unit of society,
national and international, and
musttherefore 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'sundismayed determination to
establish for all nations a rule of law that
wouldforever banish the terrible holocaust
of war in the so9lution of
internationaldisputes.
The first formal step toward the creation
of the United Nations was the
MoscowDeclaration, signed by the
representatives of China, the Soviet

Union, the UnitedKingdom, and the United

States.
The U.N. Charter
The United Nations Charter a
lengthy document consisting of 111
articlesbesides the preamble and the
concluding provisions. It also includes the
Statuteof the International Court of Justice
which is annexed to and made an
integralpart of it.
In one sense, the Charter maybe
considered a treaty because it derives
itsbinding force from the agreement
of the parties to it. In another sense, it
maybe regarded as a constitution in so
far as it provides for the organization
andoperations of the different organs of
the United Nations and for the adoption
ofany change in its provisions
through formal process of
amendment.

The Charter is intended to apply not only

to the members of the Organization
butalso to non-member states so far as
may be necessary for the maintenance
ofinternational peace and security.
Amendments to the Charter shall come
into force by a vote of two-thirds of
themembers of the General Assembly and
ratified in accordance with theirrespective
constitutional processes by two-thirds of
the Members of the UnitedNations.
The Preamble to the Charter
The preamble introduces the Charter and
sets the common intentions that
movedthe original members to unite their
will and efforts to achieve their
commonpurposes.
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 ofthese
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
allits members;
2. All Members shall fulfill in good faith
the obligations assumed by themin
accordance with the present Charter;

3. All Members shall settle their

international disputes by
peacefulmeans;
4. All Members shall refrain in their
international relations from the threat
oruse of force against the territorial
integrity or political independenceof
any state;
5. All Members shall give the United
Nations every assistancein anyaction it
takes in accordance with the present
Charter;
6. The Organization shall ensure that
states which are not Members of
theUnited Nations act in accordance
with these Principles; and,
7. Nothing contained in the present
Charter shall authorize the
UnitedNations to intervene in
matters which are essentially within
thedomestic jurisdiction of any state.

Membership
Two Kinds of members in the United
Nations
1. Original those which, having
participated in the United
NationsConference on International
Organization at San Francisco or
havingpreviously 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
althoughit 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
effectedby 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.
2.
3.
4.
5.
6.

The
The
The
The
The
The

General Assembly
Security Council
Economic and Social Council
Trusteeship Council
International Court of Justice
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 makingrecommendations;
Supervisory such as receiving
and considering annual and
specialreports from the other
organs;
Financial such as consideration
and approval of budget of
theOrganization;
Elective such as the election of
non-permanent members of theSecurity
Council;
Constituent such as the
admission of members and the
amendmentof 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
socialcooperation is vested in the General
Assembly, and under its authority,
theEconomic and Social Council.
Specifically these organs should exert
effortstoward:
higher standards of living, full
employment, and conditions of
economicand 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
allwithout 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 thesame
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
bythose 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 mandatoryand
legal and may be demanded as a
matter of right by any entity that
canestablish 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
Relatively
permanent;
Vests title in the
government toits
properties abroad;
Brings about full

De Facto
Provisional;
Does not;

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 nonsuability 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
durationof 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 SELFDEFENSE
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 selfdefense, 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 PactaSuntServanda. The
principle ofmare liberumwill 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.
PactaSuntServanda 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
anoffer 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
statecannot 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
absoluteequality among states is still a
distant and well high impossible
aspiration. Underthe Charter of the United
Nations, for example, non-procedural
questions aredecided by the Security

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 alsowith 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
ofquestions involving the entire
community of nations. Such decisions
may affect
the interests, not of individual states as
such, but of the whole of humanity
itselfwithout distinctions as to color,
nationality or creed.

CHAPTER 9

TERRITORY
Territory the fixed portion of the
surface of the earth inhabited by the
people ofthe state.
As previously observed, the territory must
be big enough to provide for the needsof
the population but should not be so
extensive as to be difficult to administer
ordefend from external aggression.
Acquisition and Loss of Territory
Mode in the Acquisition of Territory
1.
2.
3.
4.
5.

by
by
by
by
by

discovery and occupation

prescription
cession
subjugation and
accretion

Mode of Losing Territory

1. by abandonment or dereliction

2.
3.
4.
5.

by
by
by
by

cession
subjugation
revolution and
natural causes

Discovery and Occupation

Discovery and occupation is an original
mode of acquisitionby which territory
notbelonging to any state, or terra nullius,
is placed under the sovereignty of
thediscovering state. The territory need
not be uninhabited provided it can
beestablished that the natives are not
sufficiently civilized and can be
considered aspossessing not rights of
sovereignty but only rights of
habitation.Like the open seas, outer
space is res communist and not
susceptible todiscovery 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
acquiredby the claimant state pending
compliance with the second requirement,
which isthe administration of the territory.
Otherwise, the title will lapse and the
territorywill 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 ofpossession
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 terranullius,
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 cedatprincipali. 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 landlocked 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 socalled 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 oras 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 Iof the 1987 Constitution, which
follows:
The national territory comprises the
Philippine archipelago, with all
theislands and waters embraced
therein, and all the other territories
belonging tothe Philippines by historic
right or legal title...
Our position is that all these islands
should be considered one integrated

wholeinstead of being fragmented into

separate units each with its own territorial
sea.Otherwise, the water outside each of
these territorial seas will be regarded
ashigh seas and thus be open to all
foreign vessels to the prejudice of our
economyand national security.
An archipelago is a group of islands,
including parts of islands,
interconnectingwaters and other natural
features which are so closely interrelated
that suchislands, 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
baselinesshould be drawn to connect
appropriate points of the outermost
islandswithout departing radically
from the general direction of the
coast so thatthe entire archipelago

shall be encompassed as one whole

territory. Thewaters inside these
baselines shall be considered internal and
thus not subject toentry 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
thelow-water mark of the coast, to the
breadth claimed, following itssinuosities
and curvatures but excluding the the
internal waters in baysand gulfs.
(b) Straight baseline method straight
lines are made to connectappropriate
points on the coast without departing
radically from its generaldirection.
C. The Aerial Domain
The aerial domain the airspace above
the terrestrial domain and the
maritimeand fluvial domain of the state,
to an unlimited altitude but not including
the outerspace.
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 personwho,
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 noncommercial 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 thepeace, 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
200nautical miles from the coast or the
baselines. All living and non-living
resourcesfound 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 communisand available to
the use of all states for purposes of
navigation, flying over them, laying
submarine cables or fishing.
Exceptions:
1. Over its vessels. The flag state has
jurisdiction over its public vessels at all
times, whether they be in its own
territory, in the territory of other states or
on the open seas. Merchant vessels, on
the other hand, are under its jurisdiction
when they are within its territory, when
jurisdiction is waived or cannot be
exercised by the territorial sovereign, or
when such vessels are on the open seas.
2. Over pirates. Pirates are enemies of
all mankind and may be captured on the
open seas by the vessels of any state, to
whose territory they may be brought for

trial and punishment. Where a pirate

vessel attempts to escape into territorial
waters of another state, the pursuing
vessel may continue the chase but is
under the obligation of turning over the
pirates, when captured, to the authorities
of the coastal state.
3. In the exercise of the right of visit
and search. Under the laws of neutrality,
the public vessels or aircraft of a
belligerent state may visit and search any
neutral merchant vessel on the open seas
and capture it or its cargo if it is found or
suspected to be engaged or to have
engaged in activities favorable to the
other belligerent.
4. Under the doctrine of hot pursuit.
If an offense is committed by a foreign
merchant vessel within the territorial
waters of the coastal state, its own
vessels may pursue the offending vessel
into the open seas and upon capture
bring it back to its territory. The pursuit

must be continuous or unabated;

otherwise, it will be deemed to have
cooled and can no longer be resumed.
Aerial Jurisdiction
There are no traditional rules in
international law regarding the rights of
the subjacent state to its aerial domain.
Nonetheless, it may be said that the
consensus appears to be that the local
state has jurisdiction over the airspace
above it to an unlimited height, or at the
most up to where outer space begins.
Accordingly, and as a corollary to this
rule, no foreign aircraft, civil or military,
may pass through the aerial domain of a
state without its consent.
General rule: Under the Convention on
Offenses and Certain Other Acts
Committed on Board Aircraft, it is the
state of registration of the aircraft that
has jurisdiction over offenses and acts
committed on board while it is in flight or

over the high seas or any other area

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