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They are inherent powers because they belong to the very essence of government
and without them no government can exist.
Similarities:
They are inherent in the State and may be exercised by it without need of express
constitutional grant.
They are necessary and indispensable The State cannot continue or be effective
unless it is able to
exercise them.
They are methods by which the State interferes with private rights.
They all presuppose an equivalent compensation for the private rights interfered
with.
They are exercised primarily by the legislature.
Differences:
Police Power Eminent Domain Taxation
Limitations:
(a) May not be exercised arbitrarily to the prejudice of the Bill of Rights.
(b) Subject at all times to the limitations and requirements of the Constitution
and may in proper cases be annulled by the courts, i.e. when there is a grave
abuse of discretion.
A. POLICE POWER
Police Power is an inherent power of the State to promote the welfare of society
by restraining and regulating the use of liberty and property.
Justification of existence:
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 (TiovsVideogram 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
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
[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.
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.
The Regional Trial Court (RTC) has the jurisdiction over a complaint foreminent
domain.
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 vsChinese
Community)
3. Taking
the prejudice suffered by the individual the individual suffers more than his
property owner is shared in common aliquot part of the damages, i.e. a
with the rest of the community special injury above that
sustained by the rest of the community
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)
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.
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 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
Taxes vs Licenses
Tax License
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
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
3. Public Purpose
whatever may be beneficially employed for the general welfare
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.
Rights is a guarantee that there are certain areas of a person's life, liberty, and
property which governmental power may not touch.
Classification of Rights
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;
A. DUE PROCESS
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
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
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
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)
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.
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 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.
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.
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.
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 (2), Art. III Exclusionary Rule (which embodies the Doctrine of the
Fruit of the Poisonous Tree)
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)
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
[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
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.
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
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.
3. After examination Not merely routinary but Not merely routinary but
under oath or must must
affirmation of the be probing and exhaustive be probing and exhaustive
complainant and the
witnesses he may
produce
4.Particularity of General Rule: it must General Rule: when the
description contain the name/s of description therein is as
thepersons to be arrested specific
Exception: if there is as the circumstances will
some descriptio personae ordinarily allow.
which will enable the Exception: when no
officer to identify the other more
accused 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.
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.
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 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.
(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)
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 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
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.
(a) The person claiming the right must be in actual detention or custody of the law.
(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.
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.
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.
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.
(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
Speedy trial -
1. Free from vexatious, capricious and oppressive delays
2. To relieve the accused from needless anxieties before sentence is pronounced
upon him
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.
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.
Trial in Absentia is mandatory upon the court whenever the accused has been
arraigned.
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
7. Compulsory Process
8. Trial in Absentia
Trial in Absentia May Only Be Allowed If the Following Requisites Are Met:
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.
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 action shall take precedence in the calendar of the court and must be acted
upon immediately
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)
Procedure
Need to comply with writ; disobedience thereof constitutes contempt
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.
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
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
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:
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;
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;
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:
The return shall also state other matters relevant to the investigation, its resolution
and the prosecution of the case.
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.
The hearing shall be from day to day until completed and given the same priority as
petitions for habeas corpus.
(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.
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.
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.
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.
The procedure under this Rule shall govern the disposition of the reliefs available
under the writ of amparo.
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. 27.Effectivity.This Rule shall take effect on October 24, 2007, following its
publication in three (3) newspapers of general circulation.
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;
Applicable to:
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.
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
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:
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.
The right does not prohibit the examination of the body of the accused or the use
of findings with respect to his body as physical evidence. Hence, the fingerprinting
of an accused would not violate the right against self-incrimination. However,
obtaining a sample of the handwriting of the accused would violate this right if he is
charged for falsification.
Section 18 (1), Art. III. No person shall be detained solely by reason of his
political beliefs and aspirations.
(1) Slavery civil relation in which one man has absolute power over the life,
fortune and liberty of another;
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)
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)
Standards Used
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.
Debt any civil obligation arising from a contract, expressed or implied, resulting in
any liability to pay in money.
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.
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.
(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
(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.
1) Acquittal
2) Conviction
3) Dismissal W/O the EXPRESS consent of the accused
4) Dismissal on the merits.
(a) Dismissal based on violation of the right to a speedy trial. This amounts to an
acquittal.
(d) If the dismissal violates the right of due process of the prosecution.
(a) Exact identity between the offenses charged in the first and second cases.
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.
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.
(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)
In Lacson v. Exec. Sec., the Court held that in general, ex post facto law prohibits
retrospectivity of penal laws. RA No. 8249 is not a penal law.... The contention that
the new law diluted their right to a two-tiered appeal is incorrect because the right
to appeal is not a natural right but statutory in nature that can be regulated by law.
RA 8249 pertains only to matters of procedure, and being merely an amendatory
statute it does not partake the nature of ex post facto law.
In Calder v. Bull, the Court said that when the law alters the legal rules of
evidence or mode of trial, it is an ex post facto law. Exception: (Beazell v. Ohio)
unless the changes operate only in limited and unsubstantial manner to the
disadvantage of the accused.
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)
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.
1. letters
2. messages
3. telephone calls
4. telegrams, and
5. the likes
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.
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.
Writ of habeas data is a remedy available to any person whose right to privacy
in life, liberty or security is violated or threatened by an unlawful act or omission of
a public official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the person, family,
home and correspondence of the aggrieved party.
It is governed by The Rule on the Writ of Habeas Data (A.M. No. 08-1-16- SC full
text), which was approved by the Supreme Court on 22 January 2008. That Rule
shall not diminish, increase or modify substantive rights.
Constitutional Basis
Section 5(5), Art. VIII. Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and procedure in
all courts, the admission to the practice of law, the integrated bar, and
legal assistance to the under-privileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of cases,
shall be uniform for all courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of procedure of special
courts and quasi-judicial bodies shall remain effective unless disapproved
by the Supreme Court.
The Rule takes effect on 2 February 2008, following its publication in three (3)
newspapers of general circulation.
Who may file a petition for the issuance of a writ of habeas data?
(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.
(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.
(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.
(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
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;
(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
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 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.
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
These are political rights that are available to citizens only (Bernas, Philippine
Constitution, p. 85).
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
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
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.
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 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.
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.
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)
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.
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.
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.
Libel = falsity + actual malice (uttered in full knowledge of its falsity or with
reckless disregard)
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.
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.
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
ideally, the test should be the purpose for which the assembly is held, regardless
of the auspices under which it is organized
In People v. Bustos, Bustos and several people sent complaint letters via counsel
against Justice of Peace Roman Punsalan, who charged them with libel.
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.
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.
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)
1. Non-establishment Clause
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]
Rationale:
(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.
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
(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
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.
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.
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 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.
Rubivs Provincial Board of Mindoro 1919 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 vsLukban1919 Prostitutes, despite being in a sense
lepers, are not
chattels but Philippine citizens, protected
by the same constitutional guarantee of
freedom of abode. They may not be
compelled to change their domicile in
the absence of a law allowing such.
SalongavsHermoso97 SCRA 121 the case became moot and academic
when the permit to travel abroad was
issued before the case could be heard.
Lorenzo vs Dir. ofHealth1927 Laws for the segregation of lepers have
been provided the world over and is
supported by high scientific authority.
Such segregation is premised on the
duty to protect public health.
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 jurisdiction
of the Philippines where orders of
Philippine courts would have no binding
force.
Marcos vsManglapus1989 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.
Philippine Association of Service Right to travel may be impaired in the
Exporters vsDrilon interest of national security, public
1988 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.
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.
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).
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.
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).
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
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;
4. The constant and reasonable fear that violations of international law might visit
upon the culprit the retaliation of other states; and,
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.
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.
CHAPTER 2
THE INTERNATIONAL COMMUNITY
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
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.
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).
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.
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.
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.
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
8. Individuals
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 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.
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
Principles
The Seven Cardinal Principles ( as enumerated in Article 2):
2. All Members shall fulfill in good faith the obligations assumed by themin
accordance with the present Charter;
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,
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.
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
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.
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.
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.
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 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.
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.
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.
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
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
Objects of Recognition
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
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.
1. De Jure
2. De facto
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,
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.
De Jure De Facto
Relatively permanent; Provisional;
Vests title in the government toits Does not;
properties abroad;
Brings about full diplomatic relations. Limited to certain juridical relations.
Effects of Recognition of State and Governments
1. Full diplomatic relations are established except where the government recognized
is de facto;
2. The recognized state or government acquired right to sue in the courts of the
recognizing state.
It is error, however, to suppose that non-suability of the foreign state or government
is also an effect of recognition, as this is an attribute it can claim whether or not it
has been recognized by the local state. The applicable rule is the doctrine of state
immunity. It has been held that to cite a foreign sovereign
in the municipal courts of another state would be an insult which he is entitled to
resent and would certainly vex the peace of nations.
Recognition of Belligerency
A belligerency exists when the inhabitants of a state rise up in arms for the purpose
of overthrowing the legitimate government.
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.
CHAPTER 6
THE RIGHT OF EXISTENCE AND SELF-DEFENSE
Once a state comes into being, it is invested with certain rights described as
fundamental.
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
Nothing in the present Charter shall impair the inherent right of individual or
collective self-defense if any armed attack occurs against a member of the
United Nations, until the Security Council has taken the measures necessary
for the maintenance of international peace and security. xxx
The presence of an armed attack to justify the exercise of the right of the self-
defense under this article suggests that forcible measures may be taken by a state
only in the face of necessity of self-defense, instant, overwhelming and leaving no
choice of means and no moment for deliberation.
Regional Arrangements
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
Article 1
Article 3
a. The invasion or attack by the armed forces of a state of 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,
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.
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
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.
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.
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.
CHAPTER 8
THE RIGHT OF EQUALITY
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.
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.
1. by abandonment or dereliction
2. by cession
3. by subjugation
4. by revolution and
5. by natural causes
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
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
Subjugation
1. conquest
2. annexation
Accretion
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
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
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
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.
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.
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.
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.
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.
Article I of the 1987 Constitution was based on R.A. 3046 as amended by R.A.No.
5446 declaring the Philippine 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.
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.
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.
By fiction of law, public vessels are regarded as extensions of the territory of the
foreign state.
3. Acts of state;
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;
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.
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.
2. punish infringement of the above regulations within its territory or territorial sea.
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.
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.
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.