CODES AND NOTES ON CONSTITUTIONAL LAW II (a) May not be exercised arbitrarily to the prejudice of

NOTES AND CASES ON CONSTITUTIONAL LAW II the Bill of Rights.

I. THE INHERENT/ FUNDAMENTAL POWERS OF THE STATE (b) Subject at all times to the limitations and
1. Police Power requirements of the Constitution and may in proper
2. Power of Eminent Domain cases be annulled by the courts, i.e. when there is a
3. Power of Taxation grave abuse of discretion.

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

Similarities:
· They are inherent in the State and may be exercised by it
without need of express constitutional grant. Justification of existence:
· They are necessary and indispensable The State cannot
continue or be effective unless it is able to · Saluspopuliestsupremalex– the welfare of the people is the
exercise them. supreme law;
· They are methods by which the State interferes with private
rights. · Sic uteretuoutalienum non laedas– a person must use his
· They all presuppose an equivalent compensation for the ownproperty so as not to injure another
private rights interfered with.
· They are exercised primarily by the legislature. Scope:
(a) cannot be bargained away through the medium of a treaty
or contract (Stone v Mississippi)
Differences: (b) may use taxing power as its implement (TiovsVideogram
Police Eminent Taxation Regulatory Board)
Power Domain (c) may use eminent domain as its implement (Assoc. of Small
As to regulates regulates Regulates Landowners vs Sec. of Agrarian Reform)
regulation/exten both liberty property property (d) could be given retroactive effect and may reasonably
t of power and rights only rights only impair vested rights or contracts (police power prevails over
property contract)
As to who may only the government only the (e) dynamic, not static, and must move with the moving
exercise governmen and some government society it is supposed to regulate
t private
entities Who may exercise Police Power?
As to the destroyed -wholesome -wholesome (a) the Legislature (inherent)
property taken because it -taken for a -taken for a (b) President (by delegation)
is public use public use or (c) administrative boards (by delegation)
noxious or or purpose purpose (d) lawmaking bodies on all municipal levels, including
intended barangay (by delegation)
for (e) Municipal governments / LGU's (conferred by statute –
noxious general welfare clause of RA 7160)
purpose
As to intangible full and fair protection · Not being a political subdivision but merely an executive
Compensation altruistic equivalent and public authority it has no police power. (MMDA v. Bel-Air Village
feeling that of the improvement Assoc.)
the person property s for the
has expropriate taxes paid Tests (Limitations):
contribute d
d to the (a) Lawful subject – interests of the public generally, as
general distinguished from those of a particular class, require the
welfare exercise of police power

Limitations:
(b) Lawful means – the means employed are reasonably Protection general welfare is a function of police power which
necessary for the accomplishment of the purpose and not both restrains and is restrained by due process, which
unduly oppressive upon individuals requires notice and hearing.

Additional limitations (when exercised by delegate) [Nachura Case emphasized the need to have a lawful method to follow
Reviewer]: due processrequirement.
· express grant by law (e.g. RA 7160)
· within territorial limits (for LGU's) Reasons why ordinance is invalid are:
· must not be contrary to law (City Government of Quezon City ◦ No reasonable connection between means
vsEricta) employed (absolute ban on movement of carabeef)
· for municipal ordinances - and purpose sought to be achieved (conservation of
1. must not contravene the Constitution or any carabao for general welfare)
statute ◦ Unduly oppressive since petition not given due
2. must not be unfair and oppressive process or opportunity to be heard in proper court
3. must not be partial and discriminatory
4. must not prohibit, but may regulate, trade B. EMINENT DOMAIN
5. must not be unreasonable
6. must be general in application and consistent with Eminent Domain – is the use of the government of its
public policy coercive authority, upon just compensation, to forcibly
acquire the needed property in order to devote the same to
· In Ermita-Malate Hotel and Motel Operators Association, public use. Eminent domain is also known as expropriation, or
Inc. v. Mayor of Manila, police power has been characterized condemnation.
as the most essential,insistent and least limitable of powers
extending as it does “to all greatpublic needs.” Who may Exercise?
1. The Congress (inherent)
“[T}he mere fact that some individuals in the community may 2. President
be deprived of 3. various local legislative bodies
their business or a particular mode of earning a living cannot 4. certain public corporations (e.g. National Housing
prevent the exercise of police power. .. [P]ersons licensed to Authority)
pursue occupations which may in the public need and interest 5. Quasi-public corporations (e.g. PLDT)
be affected by the exercise of the police power embark in
these occupations subject to the disadvantages which may Eminent Domain Distinguished from Destruction from
result from the exercise of that power. ” Necessity
Eminent Domain Destruction from Necessity
Government can take away a license and increase the cost of
license fees even to prohibitive levels, if public interest · public right · private right vested in every
dictates so, without any constitutional violations. · arises from the laws of individual with which the right
society and is vested in the of state or state necessity has
Licenses for regulating non-useful occupation are incidental to state or grantee, acting nothing
the exercise of police power and the right to exact fees is may under the right and power to do
be implied from that power to regulate. In setting the fees, of the state or benefit of the · comes under the right of
municipal corporations are given wider discretion in this class state necessity, of self-preservation
of licenses (than for licenses issued to regular business). · arises under the laws of
Courts have generally upheld these because of the desirability society or society itself
of imposing restraints on individuals who engage in these · cannot require the conversion
unusefulenterprises. of the property taken to public
use, nor is there any need for
· In Ynot v. IAC, the Court here ruled that the ban on the payment of just
transportation of carabao under the assailed ordinance and compensation
their outright confiscation and disposal without court hearing
is a violation of due process hence it is an invalid exercise of · The Regional Trial Court (RTC) has the jurisdiction over a
police power. complaint foreminent domain.

The court adopted the measures laid down in the Toribio Requisites of Eminent Domain:
case. 1. Necessity of exercise
2. Private property
3. Taking
4. Public use
5. Just compensation
1. Necessity of Exercise
· genuine necessity, and
· must be of public character
◦ When exercised by legislature – political question
◦ When exercised by a delegate – justiciable question
▪ determine the: (a) adequacy of
compensation; (b) necessity oftaking; and (c) public
use character
2. Private Property
· General Rule: anything that can come under the dominion of
man is subject to expropriation
· Exceptions: money and chose in action (personal right not
reduced into possession, i.e. the right to
bring an action to recover debt, money or thing)
· Private property already devoted to public use cannot be
expropriated by a delegate acting under a general grant of
authority (City of Manila vsChinese Community)
3. Taking
Requisites (Republic vsCastellvi):
(a) expropriator must enter a private property
(b) entry must be for more than a momentary period
(c) entry must be under the warrant of legal authority
(d) entry is for public use
(e) the owner is deprived of enjoying his property
· if taking is under police power, it is not compensable
Taking Under Eminent Domain vs Taking in Police Power :
Police Power Eminent Domain
· the prejudice suffered by · the individual suffers more
the individual property owner than his aliquot part of the
is shared in common with the damages, i.e. a special injury
rest of the community above that
sustained by the rest of the
community
· In Amigable v. Cuenca, where there is taking in the
constitutional sense, the property owner need not file a claim
for just compensation with the Commission of Audit; he may
go directly to the court to demand payment. Arbitrary action
of the government shall be deemed a waiver of its immunity
from suit.
· In City Government v. Ericta, an ordinance of Quezon City,
under theguise of exercising police power, prescribed that at
least 6% of the totalarea of memorial parks must be
developed and set aside for the burial of paupers. The Court
held that such ordinance is not an exercise of police power
but the taking of private property for public use. Hence, to
satisfy the Constitution, there must be compensation.
4. Public Use
Public use – is whatever may be beneficially employed for the
general welfare, including both direct or indirect benefit or
advantage to the public
· In Heirs of Ardona v. Reyes, the Court held that the
Constitution understand public use in a broad sense as
meaning public welfare. That includes development of
tourism.
5. Just Compensation
Just compensation – is fair and full equivalent payment for
the loss sustained, which is the measure of the indemnity, not
whatever gain would accrue to the expropriating agency. It is
not market value per se. (Epza v. Dulay)
· Where only part of the property is expropriated:
entitlement toconsequential damages, if any
+ consequential benefits must be deducted from the
total compensation provided consequential
benefits does not exceed consequential damages
◦ Payment of the correct amount + Payment within a
reasonable time
· Form of Compensation: Money (However, in Assoc.
of Small Landowners vs Sec. of Agrarian Reform,
payment is allowed to be madepartly in bonds
because it deals with a revolutionary kind of
expropriation).
· Transfer of Title: payment of just compensation
before title istransferred.
· Reckoning point of market value of property: either
as of the date of taking or filing of the complaint,
whichever comes first
· Entitlement of interest:
◦ General Rule: when there is delay, there must be
interest by way ofdamages (Art. 2209, CC)
◦ Exception: when waived by not claiming the interest
· Payment of Taxes :taxes paid from the time of the taking
until the transfer of the title, during which the owner did not
enjoy any beneficial use of the property, are reimbursable by
the expropriator.
· Right of the landowner in case of non-payment:
◦ General Rule: landowner is not entitled to recover
possession of the property, but only to demand payment
◦ Exception: when the government failed to pay just
compensation within 5 years from the finality of judgment in
expropriation proceedings, there is a right to recover property
· In De Knecht v. Bautista, the court ruled that the
expropriation proceeding against the property of petitioner
was arbitrary and cannot receive judicial approval. There was
another area where the expansion ofEDSA can be undertaken,
which will cost government less, affect lesserhomeowners,
etc.
· But in Republic vs. Knecht, the same property was ordered
expropriated. Apparently, BP 340, which called for the taking
of the property, was enacted after the 1st De Knecht case. De
Knecht argued that there was already a law of the case, which
should not be disturbed.
Court responded that while it is true that there was a law of
the case, it is equally true that there is constitutional grant
given to the State to take private property upon payment of
just compensation. “Such expropriation proceedings may be
undertaken by the [State] not only by voluntary negotiation
with landowners but also by taking appropriate court action
or by legislation.”
The prior court decision is no obstacle for the legislature to
make its own assessment of the circumstances that prevailed
after the decision as well as supervening events and reaching
a conclusion as to the propriety of undertaking the
appropriation of the De Knecht property.
· In the case Republic v. PLDT, the Court ordered the PLDT to
allow the reconnection of telephone lines of the Republic.
◦ No cogent reason appears why Eminent Domain
may be availed of toimpose only a burden upon the
owner of condemned property withoutloss of title or
possession for public use subject to just
compensation
◦ Case highlights that even services may be subjected
to eminentdomain
· In City of Manila v. Chinese Community of Manila, the Court
said that“[T]he very foundation of the right to exercise
eminent domain is a genuinenecessity and that necessity
must be of public character.”
· In Epza v. Dulay, P.D. Nos. 76, 464, 794, and 1533 prescribed
a formula for arriving at just compensation in expropriation
proceedings , dispensewith the need to appoint
commissioners to determine just compensation.The Court
held that those decrees are unconstitutional and void for
theyconstitute “impermissible encroachment on judicial
prerogatives.”
· In Republic v. CA, the government argued that the
nullification shouldonly have prospective effect. The Court
agreed. Thus under the“operative fact” doctrine, the effect of
the invalidated law was allowed toaffect transactions
completed before the declaration of nullity.
C. POWER OF TAXATION
Power of Taxation – is a method by which contributions are
exacted frompersons and property for the support of
government and for all public needs.
· Obligation to pay taxes is a duty
Taxes vs Licenses
Tax License
· to raise revenues · for regulatory purpose only
· justified under police power
· amount of fees required is
usually limited to the
cost of regulation
Scope
· all income earned in the taxing state, whether by citizens or
aliens, and allimmovable and tangible personal properties
found in its territory, as wellas tangible personal property
owned by persons domiciled therein
Power to Tax Includes Power to Destroy
(1) when used validly as an implement of the police power in
discouragingand in effect ultimately prohibiting certain things
or enterprises inimical topublic welfare
Power to Tax Does Not Include Power to Destroy
· where the tax is used solely for the purpose of raising
revenues
Who May Exercise
1. Legislature / Congress (inherent)
2. President (by delegation / tariff powers [Sec. 28 (2), Art. VI,
Consti])
3. local legislative bodies (conferred by direct authority [Sec.
5, Art. X,Consti])
Limitations of Taxation:
1. Due Process of Law
2. Equal Protection
3. Public Purpose
1. Due Process
· Substantive :tax should not be confiscatory except when
used as animplement of police power
· Procedural :due process does not require previous notice
and hearingbefore a law prescribing specific taxes on specific
articles may beenacted. However, where the tax to be
collected is to be based on thevalue of the taxable property,
the taxpayer is entitled to be notified of theassessment
proceedings and to be heard therein on the correct
valuationof the property.
2. Equal Protection
· embodied in Sec. 28 (1), Art. VI, 1987 Constitution (The rule
of taxation shall be uniform and equitable. The Congress shall
evolve a progressivesystem of taxation.)
· Uniformity – persons or things belonging to the same class
shall be taxedat the same rate
◦ Requisites (Tan vs Del Rosario):
(a) standards that are used are substantial
and not arbitrary
(b) categorization is germane to achieve the
legislative purpose
(c) the law applies, all things being equal, to
both present and futureconditions
(d) classification applies equally well to all
those belonging to the sameclass
· Equitable taxation – based on the capacity to pay
· Equality in taxation – tax shall be strictly proportional to the
relative valueof the property
· Progressive system of taxation – the rate increases as the
tax baseincreases
3. Public Purpose
· whatever may be beneficially employed for the general
welfare
· Double Taxation / Direct Duplicate Taxation
◦ when additional taxes are laid on the same subject
by the same taxingjurisdiction during the same taxing
period and for the same purpose.
◦ despite the lack of specific prohibition, double
taxation will not be allowed if it results in a violation
of the equal protection clause.
· Tax Exemptions may either be:
◦ constitutional
▪ Art. Vi, Sec. 28 (3) : when lands, buildings
and improvements are actually, directly and
exclusively for religious, charitable
oreducational purposes – entitled to
exemption
◦ statutory- discretion of legislature
II. CIVIL AND POLITICAL RIGHTS
Bill of Rights – set of prescriptions setting forth the
fundamental civil and political rights of the individual, and
imposing limitations on the powers of the government as a
means of securing the enjoyment of those rights.
Significance of the Bill of Rights
Government is powerful. When unlimited, it becomes
tyrannical. The Bill of
Rights is a guarantee that there are certain areas of a person's
life, liberty, and property which governmental power may not
touch.
· Bill of Rights are generally self-implementing.
Classification of Rights
1. Political Rights – granted by law to members of community
in relation to their direct or indirect participation in the
establishment or administration of the government;
2. Civil Rights – rights which municipal law will enforce at the
instance of private individuals for the purpose of securing
them the enjoyment of their means of happiness;
3. Social and Economic Rights; and,
4. Human Rights.
A. DUE PROCESS
Section 1, Art. III. No person shall be deprived of life, liberty,
or property without due process of law, nor shall any person
be denied the equal protection of the laws.
· no precise definition because it might prove constricting and
prevent the judiciary from adjusting it to the circumstances of
particular cases
· responsiveness to the supremacy of reason, obedience to
the dictates of justice
· embodiment of sporting idea on fair play
· guaranty against any arbitrariness on the part of the
government
Protection of Person
Covers Natural (citizen and alien) and Artificial Persons. As to
the latter, with respect only to property because its life and
liberty are derived from and subject to control of legislature
Deprivation (in Sec. 1, Art. III)
· connotes denial of right to life, liberty or property
· not unconstitutional. what is prohibited is deprivation
without due process of law.
· When the State acts to interfere with life, liberty, or
property, the presumption is that the action is valid.
1. Life
· It is not just a protection of the right to be alive or to the
security of one's limb against physical harm. The right to life is
the right to a good life... a life of dignity and... a decent
standard of living.
2. Liberty
(1) freedom to do right and never wrong (Mabini)
(2) right to be free from arbitrary personal restraint or
servitude
3. Property
· anything that can come under the right of ownership and be
the subject of contract
· all things within the commerce of man
· However, one cannot have a vested right to a public office as
this is not regarded as property. If created by statue, it may be
abolished by the legislature at any time.
· Mere privileges are not property rights and are therefore
revocable at will
Aspects of Due Process
1. Substantive Due Process
2. Procedural Due Process
· As a substantive requirement, it is a prohibition of arbitrary
laws.
· As a procedural requirement, it relates chiefly to the mode
of procedure which government agencies must follow in the
enforcement and application of laws. It is a guarantee of
procedural fairness.
Substantive Due Process
Substantive due process – requires intrinsic validity of the law
in interfering with the rights of the person to his life, liberty or
property
Requisites:
(a) Lawful Subject
(b) Lawful Means
Procedural Due Process
Procedural due process – is the restriction on actions of
judicial and quasi-judicialagencies of government.
1. Judicial Due Process
Requisites:
(a) Impartial and Competent Court
(b) Jurisdiction lawfully acquired over the person of the
defendant and/or property
(c) Hearing
· not necessarily trial-type hearing; submission of
position papers is enough
· right of a party to cross-examine the witness against
him in a civil case is an indispensable part of due
process
· the filing of a motion for reconsideration cures the
defect of absence of a hearing
· Cases in which notice and hearing may be dispensed
with without violating due process:
◦ abatement of nuisance per se
◦ preventive suspension of a civil servant
facing administrativecharges
◦ cancellation of passport of a person sought
for the commission of acrime
◦ statutory presumptions
(d) Judgment rendered upon lawful hearing (BancoEspanol
Filipino v. Palanca)
2. Administrative Due Process
Requisites:
(a) Right to a hearing
(b) Tribunal must consider the evidence presented
(c) Decision must have something to support itself
(d) Evidence must be Substantial
(e) Decision must be rendered on the evidence presented at
the hearing, or at least contained in the record and disclosed
to the parties affected
(f) Tribunal, body, or any of its judges must act on its or his
own independent consideration of the facts and law of the
controversy
(g) Decision is rendered in such a manner that the parties to
the proceeding can know the various issues involved, and the
reason for the decision rendered
· In administrative proceedings, the quantum of proof
required is only substantial evidence, such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.
· The law is vague when it lacks comprehensible standards
that men “of common intelligence must necessarily guess as
to its meaning and differ as to its application. It is repugnant
to the Constitution in two respects:
▪ it violates due process for failure to accord persons
fair notice ofconduct to avoid; and,
▪ it leaves law enforcers unbridled discretion in
carrying out itsprovisions and becomes arbitrary
flexing of the Governmentmuscle.
· In Estrada vs. Sandiganbayan, it was held that there was no
violation of due process because the nature of the charges
against the petitioner is not uncertain and void merely
because general terms are used or because it employed terms
that were not defined. The Anti-Plunder law does not violate
due process since it defines the act which it purports to
punish,giving the accused fair warning of the charges against
him, and can effectively interpose a defense against on his
behalf.
· A Connecticut statute making it a crime to use any drug or
article to prevent conception violates the right of marital
privacy which is within the penumbra of specific guarantees of
the Bill of Rights.
◦ Although the Bill of Rights does not mention
‘privacy’ the Court ruled that that the right was to be
found in the "penumbras" of otherconstitutional
protections. “The First Amendment has a penumbra
where privacy is penumbra where privacy is protected
from governmental intrusion.”
· In Lochner v. New York, Lochner was charged with violation
of the labor laws of New York for wrongfully and unlawfully
permitting an employee to work more than 60 hours in one
week. The statute allegedly violated mandates that no
employee shall contract or agree to work more than 10 hours
per day.
Issue: Whether the statute is unconstitutional.
Ruling: Yes.
The statute is unconstitutional. The statute interferes with
the liberty of a person and the right of free contract between
employer and employee by determining the hours of labor in
the occupation of a baker without reasonable ground for
doing so.
The general right to make a contract in relation to one’s
business is a liberty protected by the 14thamendment.
The state may interfere with and regulate both property and
liberty rights to prevent the individual from making certain
kinds of contracts in its exercise of police power which relates
to safety, health, morals and general welfare of the society. In
this instance, the 14th amendment cannot interfere.
The trade of a baker is not an alarmingly unhealthy one that
would warrant the state’s interference with rights to labor
and contract.
Doctrine: The rule must have a more direct relation, as means
to an end, and the end itself must be appropriate and
legitimate, before an act can be held to be valid which
interferes with the general right of an individual to be free in
his person and in his power to contract in relation to his own
labor.
· Our cases include Court of Industrial Relations (AngTibay vs.
CIR) as an administrative court which exercises judicial and
quasi-judicial functions in the determination of disputes
between employers and employees. National
Telecommunications Company (PHILCOMSAT vs. Alcuaz),
National Labor Relations Commission or NLRC (DBP vs. NLRC)
and school tribunals (Ateneo vs. CA-Board of Discipline, Alcuaz
vs. PSBA, Non vs. Judge Dames, Tinker vs. Des Moines
Community School District) also are clothed with quasi-
judicial function. It is a question of whether the body or
institution has a judicial or quasi-judicial function that makes
it bound by the due process clause. (Judicial function is
synonymous to judicial power which is the authority to settle
justiciable controversies or disputes involving rights that are
legally enforceable and demandable or the redress of wrongs
for violations of such rights. It is a determination of what the
law is and what the legal rights of the parties are with respect
to a matter in controversy).
· In AngTibay vs. CIR, the Court laid down cardinal
requirements in administrative proceedings which essentially
exercise a judicial or quasijudicialfunction. These are:
(1) the right to a hearing, which includes the right to present
one’s case and submit evidence in support thereof
(2) The tribunal must consider the evidence presented
(3) The decision must have something to support itself
(4) The evidence must be substantial. Substantial evidence
means such a reasonable evidence as a reasonable mind
might accept as adequate to support a conclusion
(5) The decision must be based on the evidence presented at
the hearting or at least contained in the record and disclosed
to the parties affected
(6) The tribunal or body of any of its judges must act on its
own independent consideration of the law and facts of the
controversy and not simply accept the views of a subordinate
(7) The Board or body should, in all controversial questions,
render its decision in such manner that the parties to the
proceeding can know the various issues involved and the
reason for the decision rendered.
B. EQUAL PROTECTION
Section 1, Art. III. No person shall be deprived of life,
liberty, or property without due process of law, nor
shall any person be denied the equal protection of
the laws.
· The Equality Protection Clause is a specific constitutional
guarantee of the Equality of the Person. The equality it
guarantees is “legal equality or, as it is usually put, the
equality of all persons before the law.
· embraced in the concept of due process
· embodied in a separate clause to provide for a more specific
guaranty against undue favoritism or hostility from the
government
Due Process Clause attacks arbitrariness in general
Equal Protection Clause attacks unwarranted partiality or
prejudice
Substantive Equality – all persons or things similarly situated
should be treated alike, both as to rights conferred and
responsibilities imposed.
Equality in enforcement of the law – law be enforced and
applied equally
Requisites of Valid Classification:
(a) it must be based on substantial distinctions
(b) it must be germane to the purposes of the law
(c) it must not be limited to existing conditions only
◦ must be enforced as long as the problem sought to
be corrected exists
(d) it must apply equally well to all members of the class
◦ both as to rights conferred and obligations imposed
· In De Guzman v. Comelec, petitioners theorize that Sec. 44
of RA 8189 is violative of the equal protection clause because
it singles out the City and Municipal Election Officers of the
COMELEC as prohibited from holding office in the same city or
municipality for more than four years. The Court held that the
law is valid. The singling out of election officers in order to
“ensure the impartiality of election officials by preventing
them from developing familiarity with the people of their
place of assignment.
· In Ormoc Sugar Central v. Ormoc City, Ormoc City imposes a
tax onOrmoc Sugar Central by name. OrmosSugar Central is
the only sugar central in Ormoc City. The Court held that such
ordinance is not valid for it would be discriminatoory against
the Ormoc Sugar Central which alone comes under the
ordinance.
C. SEARCH AND SEIZURE
Section 2, Art. III. The right of the people to be
secure in their persons,houses, papers, and effects
against unreasonable searches and seizures of
whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce, and
particularly describing the place to be searched and
the persons or things to be seized.
Section 2, Art. III – deals with tangibles; embodies the
“castle” doctrine (a man's house is his castle; a citizen enjoys
the right against official intrusion and is master of all the
surveys within the domain and privacy of his own home.)
· This provision applies as a restraint directed only against the
government and its agencies tasked with enforcement of the
law. It does not protect citizens from unreasonable searches
and seizures perpetrated by private individuals.
Section 3, Art. III. (1)The privacy of communication and
correspondence shall be inviolable except upon lawful order
of the court, or when public safety or order requires
otherwise, as prescribed by law. (2) Any evidence obtained
in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
Section 3 (1), Art. III – deals with intangibles
Section 3 (2), Art. III – Exclusionary Rule (which embodies the
Doctrine of the Fruit of the Poisonous Tree)
Exclusionary Rule – evidence obtained in violation of Sec. 2,
Art.III, shall be inadmissible for any purpose in any proceeding
(Fruit of Poisonous Tree Doctrine). (Stonehill v. Diokno)
· available to natural and artificial persons, but the latter's
books of accounts may be required to open for examination
by the State in the exercise of police power or power of
taxation The right is personal (StonehillvsDiokno)
· General Rule: only a judge may issue a warrant.
Exception: orders of arrest may be issues by administrative
authorities but only for the purpose of carrying out a final
finding of a violation of a law
Valid Warrantless Searches
[NOTE: each of these requires probable cause, except stop
and frisk]
1. searches incidental to lawful arrest (rule 126, Rules of
Court) – for dangerous weapons or anything that may have
been used or constitute in the commission of an offense
Requisites:
1. the item to be searched was within the arrestee's
custody or area of immediate control
2. the search was contemporaneous with the arrest
2. searches of moving vehicles
· In Aniag v. Comelec, twenty meters away from the gate of
the Batasan, a truck was stopped and searched. The motorists
had not given any evidence of suspicious behaviour nor had
the searching officers received any confidential information
about the car. The Court held that the search was not
justifiable as a warrantless arrest of a moving vehicle as there
was no probable cause.
3. searches of prohibited articles in plain view
Requisites:
1. prior valid intrusion to a place
 2. evidence was inadvertently discovered by the sought in the
police who has the right to be there connection of
3. evidence is immediately apparent the offense are
4. there is no further search in
the place
4. enforcement of customs law sought to be
searched
5. consented searches 2. Personal The judge personally The judge must
determination determines the personally
6. stop and frisk (limited protective search of outer clothing of probable existence ofprobable examinein the
for weapons) cause by the cause; it is form of
judge notnecessary that he searching
· In Terry v. Ohio, the stop-and-frisk rule is stated thus: should questions and
“(W)here a police officer observes unusual conduct which personally examine the answers...
leads him reasonably to conclude in the light of his experience complainant and his in writing and
that criminal activity may be afoot and that the person with witnesses under oath...
whom he is dealing may be armed and presently dangerous, (SolivenvsMakasiar) the
where in the course of investigation of this behavior he complainants
identifies himself as a policeman and makes reasonable Procedure: and his
inquiries, and where nothing in the initial stages of the (1) personally evaluate witnesses...
encounter serves to dispel his reasonable fear for his own or the fiscal's report, or on facts
others' safety, he is entitled for the protection of himself and (2) if [1] is insufficient, personally
others in the area to conduct a carefully limited search of the disregard it and require known to
outer clothing of such persons in an attempt to discover the submission of them...
weapons which might be used to assault him.” supporting affidavits of and attach to
witnesses the record their
· Stop-and-frisk rule serves a two-fold interest: Preliminary inquiry sworn
(1) the general interest of effective crime prevention and (task of statements and
detection; the judge) – affidavits.
(2) the more pressing interest of safety and self-preservation. determination of (Silva vs
(Malacat) probable cause for the Presiding Judge)
issuance of warrant of released
7. routine searches at borders and ports of entry arrest
Preliminary
8. searches of businesses in the exercise of visitorial powers investigation proper
toenforce police regulations (task of theprosecutor)
–
Valid Warrantless Arrest ascertainmentwhether
1. in flagrante delicto the offender shouldbe
2. hot pursuit held for trial or be
3. the offender escaped from the penal establishment
3. After Not merely routinary Not merely
Requisites of a valid warrant examination but must routinary but
Arrest Warrant Search Warrant under oath or be probing and must
affirmation of exhaustive be probing and
1. Probable Such facts and Such facts and the complainant exhaustive
Cause circumstances which circumstances and the
must refer to would lead a which would witnesses he
one (1) specific reasonably prudent lead a may produce
offense man to believe that an reasonably 4.Particularity General Rule: it must General Rule:
offense has been prudent man to of description contain the name/s of when the
committed and the believe that an thepersons to be description
person sought to offense has arrested therein is as
bearrested had been Exception: if there is specific
committed it committed some descriptio as the
and the objects personae which will circumstances
 enable the officer to will
identify the accused ordinarily allow.
Exception:
when no other
more
accurate and
detailed
description
could have been
given.
· In Valmonte v. Gen. De Villa, the Court held that not all
searches and seizures are prohibited. Those which are
reasonable are not forbidden. A reasonable search is not to
be determined by any fixed formula but is to be resolved
according to the facts of the case. Checkpoints are not illegal
per se... Routine inspection and few questions do not
constitute unreasonable searches. If the inspection becomes
more thorough to the extent of becoming a search, this can
be done when there is deemed to be probable cause. In the
latter situation, it is justifiable as a warrantless search of a
moving vehicle.
Probable Cause – facts and circumstances antecedent to the
issuance of a warrant that are in themselves sufficient to
induce a cautious man to rely upon them.
· In Corro v. Lising, the Affidavit of Col. Castillo stated that in
several issues of the Philippine Times:”... we found that the
said publication in fact foments distrust and hatred against
the government of the Philippines. The Court held that the
affidavit does not establish probable cause, and is nothing but
conclusions of law.
· In Burgos v. Chief of Staff, a search warrant for the
newspaper WE Forum is issued on the basis of a broad
statement of the military that Burgos, Jr. is “in possession of
printing equipment and other paraphernalia... used as means
of committing the offense of subversion.” The Court held that
such allegation is not sufficient to establish probable cause. It
is a mere conclusion of law unsupported by particulars.
The Court also held that the search warrant description has
the “sweeping tenor” making the document a general
warrant. The search warrant particularly states:”all printing
equipment, typewriters... of the WE Forum newspaper and
any other documents...” It is not required that the property to
be searched should be owned by the person against whom
the search warrant is directed. It is sufficient that the property
is under the control or possession of the person sought to be
searched.
· In Soliven v. Judge Makasiar, the Court clarified the meaning
of “personally” in the search and seizure clause. It stated that
in arriving at a conclusion as to the existence of existence of
probable cause, what is required is personal determination
and not personal examination.
· In Lim v. Felix, the Court held that the judge in issuing a
warrant of arrest cannot rely solely on the certification or
recommendation of a prosecutor that probable cause exists.
The judge must look at the report, the affidavits, the
transcripts of stenographic notes (if any), and all other
supporting documents behind the Prosecutor's certification.
· In Stonehill v. Diokno, the Court held that the following
description is insufficient for it amounts to a general warrant
authorizing the officer to pick up anything he pleases: “
Bookof accounts, financial records, vouchers...and other
documents showing all business transactions....” The Court
further held that the objection to an unlawful search or
seizure and to evidence obtained thereby is purely personal
and cannot be availed by third parties.
D. MIRANDA RIGHTS
Section 12, Art. III.
1. Any person under investigation for the
commission of an offense shall have the right to be
informed of his right to remain silent and to have
competent and independent counsel preferably of
his own choice. If the person cannot afford the
services of counsel, he must be provided with one.
These rights cannot be waived except in writing and
in the presence of
counsel.
2. No torture, force, violence, threat, intimidation, or
any other means which vitiate the free will shall be
used against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention
are prohibited.
3. Any confession or admission obtained in violation
of this or Section 17 hereof shall be inadmissible in
evidence against him.
4. The law shall provide for penal and civil sanctions
for violations of this Section as well as compensation
to the rehabilitation of victims of torture or similar
practices, and their families.
· called the “Miranda Doctrine” (Miranda vs Arizona)
Miranda Doctrine – prior to any questioning during custodial
investigation, the person must be warned that he has a right
to remain silent, that any statement he gives may be used as
evidence against him, and that he has the right to the
presence of an attorney, either retained or appointed. The
defendant may waive effectuation of these rights, provided
the waiver is made voluntarily, knowingly, and intelligently.
Purpose of the Doctrine
In Miranda v Arizona, the US Supreme Court established rules
to protect a criminal defendant's privilege against self-
incrimination from the pressures arising during custodial
investigation by the police. Thus, to providepractical
safeguards for the practical reinforcement for the right
againstcompulsory self-incrimination, the Court held that “the
prosecution may not usestatements, whether exculpatory or
inculpatory, stemming from custodialinterrogation of the
defendant unless it demonstrates the use of
proceduralsafeguards effective to secure the privilege against
self-incrimination.
Requisites of the Miranda Doctrine
(1) any person under custodial investigation has the right to
remain silent;
(2) anything he says can and will be used against him in a
court of law;
(3) he has the right to talk to an attorney before being
questioned and to have his counsel present when being
questioned; and
(4) if he cannot afford an attorney, one will be provided
before any questioning if he so desires.
Custodial investigation defined
· Any questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of
his freedom of action in any significant way.
· Begins as soon as the investigation is no longer a general
inquiry unto an unsolved crime, and direction is then aimed
upon a particular suspect who has been taken into custody
and to whom the police would then direct interrogatory
questions which tend to elicit incriminating statements.
· Shall include the practice of issuing an invitation to a person
who is investigated in connection with an offense he is
suspected to have committed, without prejudice to the
liability of the inviting officer for any violation of law.
Extrajudicial confession is Admissible when:
(a) Voluntary
(b)With assistance of counsel
(c) In writing, and
(d) Express
Rights Under Custodial Investigation
(a) To be informed of right to remain silent and to counsel
· Carries the correlative obligation on the part of the
investigator to explain and contemplates effective
communication whichresults in the subject
understanding what is conveyed. (Peoplev. Agustin)
(b) To be reminded that if he waives his right to remain silent,
anything he says can and will be used against him
(c) To remain silent
(d) To have competent and independent counsel preferably of
own choice
(e) To be provided with counsel if the person cannot afford
the services of one
(f) No torture, force, violence, threat, intimidation or any
other means which vitiate the free will shall be used against
him
(g) Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited
(h) Confessions or admissions obtained in violation of these
rights are inadmissible as evidence (exclusionary rule)
Rights That May Be Waived
[waiver must be in writing and in the presence of counsel]
(a) Right to remain silent
(b) Right to Counsel
Rights That Cannot Be Waived
(a) Right to be informed of his right to remain silent and to
counsel
(b) Right to counsel when making the waiver of the right to
remain silent or to counsel
· Right to counsel de parte is not unlimited. Accused
cannot repeatedly ask for postponement. He must be
provided with counsel de oficio.
· RA 7309: victims of unjust imprisonment may file
their claims with theBoard of Claims under DOJ
· Res Gestae: The declaration of the accused acknowledging
guilt made to the police desk officer after the crime was
committed may be given in evidence against him by the police
officer to whom the admission was made, as part of the res
gestae.
· In People v. Galit, rights under custodial investigation may
be waived. The Constitution says; “These rights cannot be
waived except in writing and in the presence of counsel.” In
localities where there are no lawyers, the State must bring the
individual to a place where there is one.
· Termination of rights under custodial investigation: When
Charges are filed against the accused (in such case, Sections
14 and 17 come into play).
· In Gutang v. People, the Court held that urine sample is
admissible. “What the Constitution prohibits is the use of
physical or moral compulsion to extort communication from
the accused, but not an inclusion of his body in evidence,
when it may be material. In fact, an accused may be validly
compelled to be photographed or measured, or his garments
or shoes removed or replaced, or to move his body to enablke
the foregoing thingsto be done, without running afould of the
proscription against testimonialcompulsion.
E. RIGHT TO BAIL
Section 13, Art. III. All persons, except those charged
with offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before
 conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by law.
The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended.
Excessive bail shall not be required.
Bail – is security given for the release of a person in custody of
law, furnished by him or a bondsman, to guaranty his
appearance before any court as may be required
Kinds of Bail
(a) Cash bond
(b) Security bond
Who May Invoke?
A person under detention even if no formal charges have yet
been filed (Rule 114, Rules of Court)
Who Are Entitled?
(a) Persons charged with offenses punishable by Reclusion
Perpetua or Death, when evidence of guilt is strong
(b) Persons convicted by the trial court. Bail is only
discretionary pending appeal.
(c) Persons who are members of the AFP facing a court
martial.
· In Paderanga v. CA, all persons actually detained, except
those charged with offenses punishable by reclusion perpetua
or death when evidence of guilt is strong, shall, before
conviction, be bailable but sufficient sureties. One is under
the custody of the law either when he has been arrested or
has surrendered himself to the jurisdiction of the court, as in
the case where through counsel petitioner for bail who was
confined in a hospital communicated his submission to the
jurisdiction of the court.
Other Rights in Relation to Bail
· The right to bail shall NOT be impaired even when the
privilege of the writ of habeas corpus is suspended.
· Excessive bail shall not be required.
Factors in Fixing Amount of Bail
(a) Ability to post bail
(b) Nature of the offense
(c) Penalty imposed by law
(d) Character and reputation of the accused
(e) Health of the accused
(f) Strength of the evidence
(g) Probability of appearing at the trial
(h) Forfeiture of previous bail bonds
(i) Whether accused was a fugitive from justice when arrested
(j) If accused is under bond in other cases
Implicit Limitations on the Right to Bail
(a) The person claiming the right must be in actual detention
or custody of the law.
· In People v. Donato, charged with rebellion, a bailable
offense, Salas nevertheless agreed “to remain in legal custody
during the pendency of the trial of his criminal case.” The
Court held that he does not have the right to bail, because bu
his act he has waived his right.
(b) The constitutional right is available only in criminal cases,
not, e.g. in deportation and extradition proceedings.
Note:
(a) Right to bail is not available in the military.
· In Comendador v. De Villa, soldier under court martial does
not enjoy the right to bail. It is because of the disciplinary
structure of the military and because soldiers are allowed the
fiduciary right to bear arms and can therefore cause great
havoc... Nor can appeal be made to the equal protection
clause ebcause equal protection applies only to those who are
equally situated.
(b) Apart from bail, a person may attain provisional liberty
through recognizance.
· In US v. Puruganan, the Court held that extradition is not a
criminal proceeding. Hence, since bail is available only in
criminal proceedings, a respondent in an extradition
proceeding is not entitled to a bail. He should apply for a bail
in the court where he will be tried.
F. RIGHTS OF THE ACCUSED
Section 14, Art. III.
1. No person shall be held to answer for a criminal
offense without due process of law.
2. In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of
the accusation against him, to have a speedy,
impartial, and public trial, to meet the witnesses
face to face, and to have compulsory process to
secure the attendance of witnesses and the
production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the
absence of the accused: Provided, that he has been
duly notified and his failure to appear is
unjustifiable.
The Rights of the Accused Include
1. Criminal due process;
2. Presumption of innocence;
3. Right to be heard by himself or counsel;
4. Right to be informed of the nature and cause of the
accusation against him;
5. Right to speedy, impartial and public trial;
6. Right to meet the witnesses face to face;
7. Right to compulsory process to secure attendance of
witnesses and production of evidence; and
8. trial in absentia
1. Criminal Due Process
Criminal process includes
a) Investigation prior to the filing of charges
b) Preliminary examination and investigation after charges are
filed
c) Period of trial
Requirements of Criminal Due Process
1. Impartial and competent court in accordance with
procedure prescribed by law;
2. Proper observance of all the rights accorded the accused
under the Constitution and the applicable statutes (example
of statutory right of the accused: right to Preliminary
investigation)
· Mistrial may be declared if shown that proceedings were
held under circumstances as would prevent the accused from
freely making hisdefense or the judge from freely arriving at
his decision.
· There is violation of due process when law not published and
a person is impleaded for violation of such law.
· There is violation of due process when appeal is permitted
by law but there is denial thereof.
2. Presumption of Innocence
· Burden of proof to establish the guilt of the accused is with
the prosecution.
· Conviction depends on the strength of prosecution, not on
the weakness of the defense
· The presumption may be overcome by contrary presumption
based on the experience of human conduct. (e.g unexplained
flight may lead to an inference of guilt, as “the wicked flee
when no man pursueth, but the righteous are as bold as a
lion.”)
· The constitutional presumption will not apply as long as
there is some rational connection between the fact proved
and the ultimate fact presumed, and the inference of one fact
from proof of another shall not be so unreasonable as to be a
purely arbitrary mandate. – Cooley
· No inference of guilt may be drawn against an accused for
his failure to make a statement of any sort.
· In Dumlao v. Comelec, for the purposes of disqualification in
an election, section 4 of BP Blg. 52 says that” the filing of
charges for the commission of such crimes before civil court
or military tribunal after preliminary investigation shall be
prima facie evidence of such fact (disqualification).” The Court
held that this provision violates the guarantee of presumption
of innocence. Although filing of charges is only prima facie
evidence and may be rebutted, the proximity of elections and
consequent risk of not having time to rebut the prima facie
evidence already in effect make him suffer as though guilty
even before trial.
Equipoise Rule – evidence of both sides are equally balanced,
in which case the constitutional presumption of innocence
should tilt the scales in favor of theaccused.
3. Right to be Heard by Himself and Counsel
· Indispensable in any criminal prosecution where the stakes
are the liberty or even the life of the accused
· Assistance of counsel begins from the time a person is taken
into custody and placed under investigation for the
commission of a crime.
▪ This is not subject to waiver.
· Right to counsel means the right to effective representation.
· If the accused appears at arraignment without counsel, the
judge must:
(a) Inform the accused that he has a right to a counsel
beforearraignment;
(b) Ask the accused if he desires the aid of counsel;
(c) If the accused desires counsel, but cannot afford
one, a counsel deoficio must be appointed;
(d) If the accused desires to obtain his own counsel,
the court must give him a reasonable time to get
one.
4. Nature and Cause of Accusation
Purpose for the Right to be informed of the Nature and
Cause of Accusation
(1) To furnish the accused with a description of the charge
against him as will enable him to make his defenses;
(2) To avail himself of his conviction or acquittal against a
further prosecution for the same cause;
(3) To inform the court of the facts alleged.
· The description and not the designation of the offense is
controlling (The real nature of the crime charged is
determined from the recital of facts in the information. It is
not determined based on the caption or preamble thereof nor
from the specification of the provision of law allegedly
violated.)
· If the information fails to allege the material elements of the
offense, the accused cannot be convicted thereof even if the
prosecution is able to present evidence during the trial with
respect to such elements.
Void for Vagueness Rule – accused is denied the right to be
informed of the charge against him and to due process as
well, where the statute itself is couched in such indefinite
language that it is not possible for men of ordinary
intelligence to determine therefrom what acts or omissions
are punished and
hence, shall be avoided.
· In Estrada vsSandiganbayan, the Court held that the Void
for Vagueness Doctrine merely requires a reasonable degree
of certaintyand not absolute precision or mathematical
exactitude.
5. The Trial
Factors in Determining Whether There Is Violation
(a) Time expired from the filing of the information
(b) Length of delay involved
(c) Reasons for the delay
(d) Assertion or non-assertion of the right by the accused
(e) Prejudice caused to the defendant.
· Effect of dismissal based on violation of this right: it
amounts to an acquittal and can be used as basis to claim
double jeopardy. This would be the effect even if the
dismissal was made with the consent of the accused
Remedy if the Right is Violated
(1) He can move for the dismissal of the case;
(2) If he is detained, he can file a petition for the issuance of
writ of habeas corpus.
Speedy trial -
1. Free from vexatious, capricious and oppressive delays
2. To relieve the accused from needless anxieties before
sentence is pronounced upon him
Impartial trial – the accused is entitled to the “cold neutrality
of an impartial judge”. It is an element of due process.
· Public trial: The attendance at the trial is open to all
irrespective of their relationship to the accused. However, if
the evidence to be adduced is “offensive to decency or public
morals”, the public may be excluded.
· The right of the accused to a public trial is not violated if the
hearings are conducted on Saturdays, either with the consent
of the accused or if failed to object thereto.
· The right to be present covers the period from arraignment
to promulgation of sentence.
· General Rule: the accused may waive the right to be present
at the trial by not showing up. However, the court can still
compel the attendance of the accused if necessary for
identification purposes.
▪ Exception: If the accused, after arraignment, has
stipulated that he is indeed the person charged with
the offense and named in theinformation, and that
any time a witness refers to a name by which he is
known, the witness is to be understood as referring to
him.
· Trial in Absentia is mandatory upon the court whenever the
accused has been arraigned.
· There is also Promulgation in Absentia
· While the accused is entitled to be present during
promulgation of judgment, the absence of his counsel during
such promulgation does not affect its validity
· The trial in absentia does not abrogate the provisions of the
Rules of Court regarding forfeiture of bail bond if the accused
fails to appear at his trial.
· A court has the power to prohibit a person admitted to bail
from leaving the Philippines as this is a necessary
consequence of the nature and function of a bail bond
6. The Right to Meet the Witnesses Face to Face
Purposes of the Right to Meet the Witnesses Face to Face
(1) To afford the accused an opportunity to cross-examine the
witness
(2) To allow the judge the opportunity to observe the
deportment of the witness
Principal Exceptions to this Right
(1) The admissibility of “dying declarations”
(2) Trial in absentia under Section 14(2)
· With respect to child testimony
· Testimony of witness who was not cross-examined is not
admissible as evidence for being hearsay.
· If a prosecution witness dies before his cross-examination
can be completed, his direct testimony cannot be stricken off
the record, provided the material points of his direct
testimony had been covered on cross.
· The right to confrontation may be waived.
7. Compulsory Process
· The accused is entitled to the issuance of subpoena ad
testificandumand subpoena ducestecumfor the purpose of
compelling the attendance of witness and the production of
evidence that he may need for his defense.
· Failure to obey – punishable as contempt of court.
· There are exceptional circumstances when the defendant
may ask for conditional examination, provided the expected
testimony is material of any witness under circumstances that
would make him unavailable from attending the trial.
8. Trial in Absentia
Trial in Absentia May Only Be Allowed If the Following
Requisites Are Met:
(1) the accused has been validly arraigned;
(2) Accused has already been arraigned;
(3) Accused has been duly notified of the trial; and
(4) His failure to appear is unjustifiable.
G. HABEAS CORPUS
Section 15, Art. III. The privilege of the writ of
habeas corpus shall not be suspended except in
cases of invasion or rebellion, when the public safety
requires it.
Writ of Habeas Corpus – is a written order issued by a court,
directed to a person detaining another, commanding him to
produce the body of the prisoner at a designated time and
place with the day and cause of his caption and detention.
Privilege of the Writ of Habeas Corpus – the right to have an
immediate determination of the legality of the deprivation of
physical liberty.
The President may suspend the privilege:
(1) in cases of invasion or rebellion
(2) when public safety requires it.
· Habeas corpus lies only where the restraint of a person's
liberty has been judicially adjudged to be illegal or unlawful
(In re: Sumulong)
· The writ is a prerogative writ employed to test the validity of
detention
· To secure the detainee’s release
· The action shall take precedence in the calendar of the court
and must be acted upon immediately
When available (enumeration not exclusive)
restoration of liberty of an individual subjected to physical
restraint
may be availed of where, as a consequence of a judicial
proceeding:
1. there has been deprivation of a constitutional right
resulting in therestraint of the person
2. the court has no jurisdiction to impose the
sentence, or
3. an excessive penalty has been imposed, since such
sentence isvoid as to the excess.
May be extended to cases by which rightful custody of any
person is withheld from the person entitled thereto
Whenmoral restraint is exerted (Cauncavs Salazar)
Right was accorded a person was sentenced to a longer
penalty than was subsequently meted out to another person
convicted of the same offense. (Gumabonvs Director of
Prisons)
Unlawful denial of bail
When not available (enumeration not exclusive)
the person alleged to be restrained is in the custody of an
officer under a process issued by the court which has
jurisdiction to do so
desaparecidos (disappeared persons) – persons could not be
found; remedy is to refer the matter to Commission on
Human Rights
Procedure
Need to comply with writ; disobedience thereof constitutes
contempt
Who may suspend the privilege
The President
Grounds for Suspension of the privilege
1. invasion or rebellion
2. when public safety requires it
Section 18, Art. VII. The President shall be the Commander-
in-Chief of all armed forces of the Philippines and whenever
it becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion.
In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days,
suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. Within
forty-eight hours from the proclamation of martial law or
the suspension of the privilege of the writ of habeas corpus,
the President shall submit a report in person or in writing to
the Congress. The Congress, voting jointly, by a vote of at
least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a
period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four
hours following such proclamation or suspension, convene in
accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the factual
basis of the proclamation of martiallaw or the suspension of
the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its
filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts
or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians
where civil courts are able to function, nor automatically
suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to
persons judicially charged for rebellion or offenses inherent
in or directly connected with invasion.
During the suspension of the privilege of the writ, any
person thus arrested or detained shall be judicially charged
within three days, otherwise he shall be released.
Lansang doctrine (Lansangvs Garcia): SC has the power to
inquire into the factual basis of the suspension of the privilege
of the writ. It is written in Article VII, Sec. 18 of the
Constitution.
H. WRIT OF AMPARO
A.M. No. 07-9-12-SC
(25 September 2007)
THE RULE ON THE WRIT OF AMPARO
SECTION 1.Petition.The petition for a writ of amparo is a
remedy available to any person whose right to life, liberty and
security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of
a private individual or entity.
The writ shall cover extralegal killings and enforced
disappearances or threats thereof.
SEC. 2.Who May File. The petition may be filed by the
aggrieved party or by any qualified person or entity in the
following order:
1. Any member of the immediate family, namely: the spouse,
children and parents of the aggrieved party;
2. Any ascendant, descendant or collateral relative of the
aggrieved party within the fourth civil degree of consanguinity
or affinity, in default of those mentioned in the preceding
paragraph; or
3. Any concerned citizen, organization, association or
institution, if there is no known member of the immediate
family or relative of the aggrieved party.
The filing of a petition by the aggrieved party suspends the
right of all other authorized parties to file similar petitions.
Likewise, the filing of the petition by an authorized party on
behalf of the aggrieved party suspends the right of all others,
observing the order established herein.
SEC. 3.Where to File.The petition may be filed on any day and
at any time with the Regional Trial Court of the place where
the threat, act or omission was committed or any of its
elements occurred, or with the Sandiganbayan, the Court of
Appeals, the Supreme Court, or any justice of such courts. The
writ shall be enforceable anywhere in the Philippines.
When issued by a Regional Trial Court or any judge thereof,
the writ shall be returnable before such court or judge.
When issued by the Sandiganbayan or the Court of Appeals or
any of their justices, it may be returnable before such court or
any justice thereof, or to any Regional Trial Court of the place
where the threat, act or omission was committed or any of its
elements occurred.
When issued by the Supreme Court or any of its justices, it
may be returnable before such Court or any justice thereof, or
before the Sandiganbayan or the Court of Appeals or any of
their justices, or to any Regional Trial Court of the place
where the threat, act or omission was committed or any of its
elements occurred.
SEC. 4.No Docket Fees. The petitioner shall be exempted from
the payment of the docket and other lawful fees when filing
the petition. The court, justice or judge shall docket the
petition and act upon it immediately.
SEC. 5.Contents of Petition.The petition shall be signed and
verified and shall allege the following:
1. The personal circumstances of the petitioner;
2. The name and personal circumstances of the respondent
responsible for the threat, act or omission, or, if the name is
unknown or uncertain, the respondent may be described by
an assumed appellation;
3. The right to life, liberty and security of the aggrieved party
violated or threatened with violation by an unlawful act or
omission of the respondent, and how such threat or violation
is committed with the attendant circumstances detailed in
supporting affidavits;
4. The investigation conducted, if any, specifying the names,
personal circumstances, and addresses of the investigating
authority or individuals, as well as the manner and conduct of
the investigation,
together with any report;
5. The actions and recourses taken by the petitioner to
determine the fate or whereabouts of the aggrieved party and
the identity of the person responsible for the threat, act or
omission; and
6. The relief prayed for. The petition may include a general
prayer for other just and equitable reliefs.
SEC. 6.Issuance of the Writ.Upon the filing of the petition, the
court, justice or judge shall immediately order the issuance of
the writ if on its face it ought to issue. The clerk of court shall
issue the writ under the seal of the court; or in case of urgent
necessity, the justice or the judge may issue the writ under his
or her own hand, and may deputize any officer or person to
serve it.
The writ shall also set the date and time for summary hearing
of the petition which shall not be later than seven (7) days
from the date of its issuance.
SEC. 7.Penalty for Refusing to Issue or Serve the Writ.A clerk
of court who refuses to issue the writ after its allowance, or a
deputized person who refuses to serve the same, shall be
punished by the court, justice or judge for contempt without
prejudice to other disciplinary actions.
SEC. 8.How the Writ is Served. The writ shall be served upon
the respondent by a judicial officer or by a person deputized
by the court, justice or judge who shall retain a copy on which
to make a return of service. In case the writ cannot be served
personally on the respondent, the rules on substituted service
shall apply.
SEC. 9.Return; Contents.Within seventy-two (72) hours after
service of the writ, the respondent shall file a verified written
return together with supporting affidavits which shall, among
other things, contain the following:
1. The lawful defenses to show that the respondent did not
violate or threaten with violation the right to life, liberty and
security of the aggrieved party, through any act or omission;
2. The steps or actions taken by the respondent to determine
the fate or whereabouts of the aggrieved party and the
person or persons responsible for the threat, act or omission;
3. All relevant information in the possession of the
respondent pertaining to the threat, act or omission against
the aggrieved party; and
4. If the respondent is a public official or employee, the return
shall further state the actions that have been or will still be
taken:
i. to verify the identity of the aggrieved party;
ii. to recover and preserve evidence related to
the death or disappearance of the person
identified in the petition which may aidin the
prosecution of the person or persons
responsible;
iii. to identify witnesses and obtain statements
from them concerningthe death or
disappearance;
iv. to determine the cause, manner, location
and time of death ordisappearance as well as
any pattern or practice that may havebrought
about the death or disappearance;
v. to identify and apprehend the person or
persons involved in thedeath or
disappearance; and
vi. to bring the suspected offenders before a
competent court.
The return shall also state other matters relevant to the
investigation, its resolution and the prosecution of the case.
A general denial of the allegations in the petition shall not be
allowed.
SEC. 10.Defenses not Pleaded Deemed Waived.All defenses
shall be raised in the return, otherwise, they shall be deemed
waived.
SEC. 11.Prohibited Pleadings and Motions.The following
pleadings and motions are prohibited:

1. Motion to dismiss;
2. Motion for extension of time to file return, opposition,
affidavit, position paper and other pleadings;
3. Dilatory motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply;
8. Motion to declare respondent in default;
9. Intervention;
10. Memorandum;
11. Motion for reconsideration of interlocutory orders or
interim relief orders; and
12. Petition for certiorari, mandamus or prohibition against
any interlocutory order.
SEC. 12.Effect of Failure to File Return.In case the respondent
fails to file a return, the court, justice or judge shall proceed
to hear the petition ex parte.
SEC. 13.Summary Hearing.The hearing on the petition shall
be summary. However, the court, justice or judge may call for
a preliminary conference to simplify the issues and determine
the possibility of obtaining stipulations and admissions from
the parties.
The hearing shall be from day to day until completed and
given the same priority as petitions for habeas corpus.
SEC. 14.Interim Reliefs.Upon filing of the petition or at
anytime before final judgment, the court, justice or judge may
grant any of the following reliefs:
(a) Temporary Protection Order. The court, justice or judge,
upon motion or motuproprio, may order that the petitioner or
the aggrieved party and any member of the immediate family
be protected in a government agency or by an accredited
person or private institution capable of keeping and securing
their safety. If the petitioner is an organization, association or
institution referred to in Section 3(c) of this Rule, the
protection may be extended to the officers involved.
The Supreme Court shall accredit the persons and private
institutions that shall extend temporary protection to the
petitioner or the aggrieved party and any member of the
immediate family, in accordance with guidelines which it shall
issue.
The accredited persons and private institutions shall comply
with the rules and conditions that may be imposed by the
court, justice or judge.
(b) Inspection Order. The court, justice or judge, upon verified
motion and after due hearing, may order any person in
possession or control of a designated land or other property,
to permit entry for the purpose of inspecting, measuring,
surveying, or photographing the property or any relevant
object or operation thereon.
The motion shall state in detail the place or places to be
inspected. It shall be supported by affidavits or testimonies of
witnesses having personal knowledge of the enforced
disappearance or whereabouts of the aggrieved party.
If the motion is opposed on the ground of national security or
of the privileged nature of the information, the court, justice
or judge may conduct a hearing in chambers to determine the
merit of the opposition.
The movant must show that the inspection order is necessary
to establish the right of the aggrieved party alleged to be
threatened or violated.
The inspection order shall specify the person or persons
authorized to make the inspection and the date, time, place
and manner of making the inspection and may prescribe
other conditions to protect the constitutional rights of all
parties. The order shall expire five (5) days after the date of its
issuance, unless extended for justifiable reasons.
(c) Production Order. The court, justice or judge, upon verified
motion and after due hearing, may order any person in
possession, custody or control of any designated documents,
papers, books, accounts, letters, photographs, objects or
tangible things, or objects in digitized or electronic form,
which constitute or contain evidence relevant to the petition
or thereturn, to produce and permit their inspection, copying
or photographing by or on behalf of the movant.
The motion may be opposed on the ground of national
security or of the privileged nature of the information, in
which case the court, justice or judge may conduct a hearing
in chambers to determine the merit of the opposition.
The court, justice or judge shall prescribe other conditions to
protect the constitutional rights of all the parties.
(d) Witness Protection Order. The court, justice or judge,
upon motion or motuproprio, may refer the witnesses to the
Department of Justice for admission to the Witness
Protection, Security and Benefit Program, pursuant to
Republic Act No. 6981.
The court, justice or judge may also refer the witnesses to
other government agencies, or to accredited persons or
private institutions capable of keeping and securing their
safety.
SEC. 15.Availability of Interim Reliefs to Respondent.Upon
verified motion of the respondent and after due hearing, the
court, justice or judge may issue an inspection order or
production order under paragraphs (b) and (c) of the
preceding section.
A motion for inspection order under this section shall be
supported by affidavits or testimonies of witnesses having
personal knowledge of the defenses of the respondent.
SEC. 16.Contempt.The court, justice or judge may order the
respondent who refuses to make a return, or who makes a
false return, or any person who otherwise disobeys or resists
a lawful process or order of the court to be punished for
contempt. The contemnor may be imprisoned or imposed a
fine.
SEC. 17.Burden of Proof and Standard of Diligence Required.
The parties shall establish their claims by substantial
evidence.
The respondent who is a private individual or entity must
prove that ordinary diligence as required by applicable laws,
rules and regulations was observed in the performance of
duty.
The respondent who is a public official or employee must
prove that extraordinary diligence as required by applicable
laws, rules and regulations wasobserved in the performance
of duty.
The respondent public official or employee cannot invoke the
presumption that official duty has been regularly performed
to evade responsibility or liability.
SEC. 18.Judgment.The court shall render judgment within ten
(10) days from the time the petition is submitted for decision.
If the allegations in the petition are proven by substantial
evidence, the court shall grant the privilege of the writ and
such reliefs as may be proper and appropriate; otherwise, the
privilege shall be denied.
SEC. 19.Appeal.Any party may appeal from the final judgment
or order to the Supreme Court under Rule 45. The appeal may
raise questions of fact or law or both.
The period of appeal shall be five (5) working days from the
date of notice of the adverse judgment.
The appeal shall be given the same priority as in habeas
corpus cases.
SEC. 20.Archiving and Revival of Cases.The court shall not
dismiss the petition, but shall archive it, if upon its
determination it cannot proceed for a valid cause such as the
failure of petitioner or witnesses to appear due to threats on
their lives.
A periodic review of the archived cases shall be made by the
amparo court that shall, motuproprio or upon motion by any
party, order their revival when ready for further proceedings.
The petition shall be dismissed with prejudice upon failure to
prosecute the case after the lapse of two (2) years from notice
to the petitioner of the order archiving the case.
The clerks of court shall submit to the Office of the Court
Administrator a consolidated list of archived cases under this
Rule not later than the first week of January of every year.
SEC. 21.Institution of Separate Actions.This Rule shall not
preclude the filing of separate criminal, civil or administrative
actions.
SEC. 22.Effect of Filing of a Criminal Action.When a criminal
action has been commenced, no separate petition for the writ
shall be filed. The reliefs under the writ shall be available by
motion in the criminal case.
The procedure under this Rule shall govern the disposition of
the reliefs available under the writ of amparo.
SEC. 23.Consolidation.When a criminal action is filed
subsequent to the filing of a petition for the writ, the latter
shall be consolidated with the criminal action.
When a criminal action and a separate civil action are filed
subsequent to a petition for a writ of amparo, the latter shall
be consolidated with the criminal action.
After consolidation, the procedure under this Rule shall
continue to apply to the disposition of the reliefs in the
petition.
SEC. 24.Substantive Rights.This Rule shall not diminish,
increase or modify substantive rights recognized and
protected by the Constitution.
SEC. 25.Suppletory Application of the Rules of Court.The
Rules of Court shall apply suppletorily insofar as it is not
inconsistent with this Rule.
SEC. 26.Applicability to Pending Cases.This Rule shall govern
cases involving extralegal killings and enforced
disappearances or threats thereof pending in the trial and
appellate courts.
SEC. 27.Effectivity.This Rule shall take effect on October 24,
2007, following its publication in three (3) newspapers of
general circulation.
I. SPEEDY DISPOSATION OF CASES
Section 16, Art. III. All persons shall have the right to a
speedy disposition of their cases before all judicial, quasi-
judicial, or administrative bodies.
Speedy Trial vs. Speedy Disposition of Cases
Speedy trial Speedy disposition of cases
Refers to trial phase only Refers to disposition of cases
(All phases)
Criminal cases only Judicial, quasi-judicial or
admin. Proceedings
· Periods for decision for courts (Sec. 15, Art. VIII)
· SC: 24 months from submission
· All lower collegiate courts: 12 months unless
reduced by SC
· All other lower courts: 3 months
Periods for decision for Constitutional Commissions (Sec 7,
Art. IX-A)
 60 days from date of submission for decision or
resolution
Factors considered in determining whether the right is
violated
1. Length of delay
2. Reason of delay
3. Assertion of the right or failure to assert it
4. Prejudice caused by delay
Remedy in case there has been unreasonable delay in
resolution of a case:
Dismissal through mandamus
J. RIGHT AGAINST SELF-INCRIMINATION
Section 17, Art. III. No person shall be compelled to be a
witness against himself.
Based on:
1. Humanitarian reasons – it is intended to prevent the State,
with all its coercive powers, from extracting from the suspect
testimony that may convict him;
2. Practical reasons – a person subjected to such compulsion
is likely to perjure himself for his own protection
Applicable to:
· Criminal prosecutions, government proceedings, including
civil actions and administrative or legislative investigations
Transactional Immunity Statute – testimony of any person or
whose possession of documents or other evidence necessary
or convenient to determine the truth in any investigation
conducted is immune from criminal prosecution for an
offense to which such compelled testimony relates.
Use and Fruit Immunity Statute – prohibits the use of the
witness' compelledtestimony and its fruit in any manner in
connection with the criminal prosecution for an offense to
which such compelled testimony relates.
May be Claimed by:
1. Accused – at all times; there is a reasonable assumption
that the purpose of his interrogation will be to incriminate
him
2. Witness – only when an incriminating question is asked,
since the witness has no way of knowing in advance the
nature or effect of the question to be put to him
- He cannot invoke right to self-incrimination when:
a) The question is relevant and otherwise allowed
evenif the answer may tend to incriminate him or
subject him to civil liability
b) the question relates to past criminality for which
thewitness can no longer be prosecuted
c) he has been previously granted immunity under
avalidly enacted statute
· Only natural persons can invoke this right. Judicial persons
are subject to the visitorial powers of the state in order to
determine compliance with the conditions of the charter
granted to them.
Scope:
(1) Testimonial Compulsion
· In Villaflor v. Summers, since the “kernel of the privilege”
was the prohibition of “testimonial compulsion”, the Court
was willing to compel a pregnant woman accused of adultery
to submit to the indignity of being tested for pregnancy. Being
purely a mechanical act, it is not a violation of her
constitutional right against self-incrimination.
(2) Production of Documents, Papers and Chattels. Exception:
when books of accounts are to be examined in the exercise of
police power and power of taxation.
· What is prohibited is the use of physical or moral compulsion
to extort communication from the witness or to otherwise
elicit evidence which would not exist were it not for the
actions compelled from the witness.
· The right does not prohibit the examination of the body of
the accused or the use of findings with respect to his body as
physical evidence. Hence, the fingerprinting of an accused
would not violate the right against self-incrimination.
However, obtaining a sample of the handwriting of the
accused would violate this right if he is charged for
falsification.

· The accused cannot be compelled to produce a private
document in his possession which might tend to incriminate
him. However, a third person in custody of the document may
be compelled to produce it.
4. Posse comitatus– in pursuit of persons who might have
violated the law, the authorities might command all male
inhabitants of a certain age to assist them (US vsPompeya)
5. Return to work order in industries affected with public
interest (KapisananngManggagawasaKahoyvsGotamco)

6. Patria Potestas– unemancipated minors are obliged to

obey their parents so long as they are under parental power
Right May be Waived: and to observe respect and reverence to them always (Art.
- Either: 311, Civil Code)
a) Directly, or
b) By failure to invoke it PROVIDED the waiver is
certain andunequivocal and intelligently and US vsPompeya An Act providing for the
willingly made. method by which the people
of the town may be called
Section 18 (1), Art. III. No person shall be detained solely by upon to render assistance for
reason of his political beliefs and aspirations. the protection of the public
and the preservation of peace
J. RIGHT AGAINST INVOLUNTARY SERVITUDE and good order is
Section 18 (2), Art. III. No involuntary servitude in any form constitutional. It was enacted
shall exist except as a punishment for a crime whereof the in the exercise of the police
party shall have been duly convicted. power of the state and does
not violate the constitutional
Involuntary Servitude – the condition of one who is prohibition on involuntary
compelled by force, coercion, or imprisonment, and against servitude.
his will, to labor for another, whether he is paid or not. Pollock vs Williams No indebtedness warrants a
suspension of the right to be
Involuntary Servitude Includes free from compulsory service,
and no state can make the
(1) Slavery –civil relation in which one man has absolute quitting of work any
power over the life, fortune and liberty of another; component of a crime, or
make criminal sanctions
(2) Peonage – a condition of enforced servitude by which the available for holding unwilling
servitor is restrained of his liberty and compelled to labor in persons to labor.
liquidation of some debtor obligation, real or pretended,
against his will K. CRUEL AND INHUMAN PUNISHMENT
Section 19, Art. III.
General Rule 1. Excessive fines shall not be imposed, nor cruel, degrading
No involuntary service in any form shall exist. or inhuman punishment inflicted. Neither shall death
penalty be imposed, unless, for compelling reasons involving
Exceptions heinous crimes, the Congress hereafter provides for it. Any
death penalty already imposed shall be reduced to reclusion
1. Punishment for a crime for which the party shall have been perpetua.
duly convicted (Sec. 18, Art. III) 2. The employment of physical, psychological, or degrading
punishment against any prisoner or detainee or the use of
2. Personal military or civil service in the interest of national substandard or inadequate penal facilities under subhuman
defense conditions shall be dealt with by law.
(Sec. 4, Art. II)
When is a penalty “cruel, degrading and inhuman”?
3. Naval enlistment – remain in service until the end of
voyage so that the crew would not desert the ship, making it (1) A penalty is cruel and inhuman if it involves torture or
difficult for the owners to recruit new hands to continue the lingering suffering.
voyage (Robertson vs Baldwin) Ex. Being drawn and quartered.
(2) A penalty is degrading if it exposes a person to public
humiliation. Ex. Being tarred and feathered, then paraded
throughout town.
Standards Used
(1) The punishment must not be so severe as to be degrading
to the dignity of human beings.
(2) It must not be applied arbitrarily.
(3) It must not be unacceptable to contemporary society
(4) It must not be excessive, i.e. it must serve a penal purpose
more effectively than a less severe punishment would.
Excessive Fine
· A fine is excessive, when under any circumstance, it is
disproportionate to the offense.
Note: Fr. Bernas says that the accused cannot be convicted of
the crime to which the punishment is attached if the court
finds that the punishment is cruel, degrading or inhuman.
Reason: Without a valid penalty, the law is not a penal law.
L. NON IMPRISONMENT FOR DEBT
Section 20, Art. III. No person shall be imprisoned for debt or
non-payment of a poll tax.
Forhumanitarian reasons… an added guaranty of the liberty
of persons against their incarceration for the enforcement of
purely private debts because of their misfortune of being poor
Debt – any civil obligation arising from a contract, expressed
or implied, resulting in any liability to pay in money.
Scope of guaranty against imprisonment for non-payment of
debt
· If an accused fails to pay the fine imposed upon him, this
may result in his subsidiary imprisonment because his liability
is ex delicto and not excontractu.
A FRAUDULENT debt may result in the imprisonment of the
debtor if:
1. The fraudulent debt constitutes a crime such as estafa; and
2. The accused has been duly convicted.
POLL TAX
General Rule: Non-payment of taxes is punishable with
imprisonment.
Exception: Failure to pay a poll tax
Poll tax – a specific sum levied upon every person belonging
to a certain class without regard to his property or
occupation.
· A tax is not a debt since it is an obligation arising
from law. Hence, itsnon-payment maybe validly
punished with imprisonment.
M. DOUBLE JEOPARDY
Section 21, Art. III. No person shall be twice put in jeopardy
of punishment for the same offense. If an act is punished by
a law and an ordinance, conviction or acquittal under either
shall constitute a bar to another prosecution for the same
act.
Double jeopardy – when a person was charged with an
offense and the case was terminated by acquittal or
conviction or in any other manner without his consent, he
cannot again be charged with the same or identical offense.
Requisites of Double Jeopardy
1. valid complaint or information
2. filed before a competent court
3. to which defendant has pleaded, and
4. defendant was previously acquitted or convicted or the
case dismissed or otherwise terminated without his express
consent.
Two (2) Kinds of Double Jeopardy
(1) When a person is put twice in jeopardy of punishment for
the same offense (1st sentence of Section 21)
(2) When a law and an ordinance punish the same act (2nd
sentence of
Sec. 21)
Same Offense
Requisites for a valid defense of double jeopardy:
(1) First jeopardy must have attached prior to the second.
(2) The first jeopardy must have terminated.
(3) The second jeopardy must be for the same offense as that
in the first.
When does jeopardy ATTACH: (1st requisite)
(a) A person is charged
(b) Under a complaint or information sufficient in form and
substance to sustain a conviction
(c) Before a court of competent jurisdiction
(d) After the person is arraigned
(e) Such person enters a valid plea.
When does jeopardy NOT attach:
(a) If information does not charge any offense
(b) If, upon pleading guilty, the accused presents evidence of
complete selfdefense, and the court thereafter acquits him
without entering a new plea of not guilty for accused.
(c) If the information for an offense cognizable by the RTC is
filed with the MTC.
(d) If a complaint filed for preliminary investigation is
dismissed.
When does first jeopardy TERMINATE: (2ND REQUISITE)
1) Acquittal
2) Conviction
3) Dismissal W/O the EXPRESS consent of the accused
4) Dismissal on the merits.
Examples of termination of jeopardy:
(a) Dismissal based on violation of the right to a speedy trial.
This amounts to an acquittal.
(b) Dismissal based on a demurrer to evidence. This is a
dismissal on the merits.
(c) Dismissal on motion of the prosecution, subsequent to a
motion for reinvestigation filed by the accused.
(d) Discharge of an accused to be a state witness. This
amounts to an acquittal.
When can the PROSECUTION appeal from an order of
dismissal:
(a) If dismissal is on motion of the accused. Exception: If
motion is based on violation of the right to a speedy trial or
on a demurrer to evidence.
(b) If dismissal does NOT amount to an acquittal or dismissal
on the merits
(c) If the question to be passed upon is purely legal.
(d) If the dismissal violates the right of due process of the
prosecution.
(e) If the dismissal was made with grave abuse of discretion.
What are considered to be the “SAME OFFENSE”:
(a) Exact identity between the offenses charged in the first
and second cases.
(b) One offense is an attempt to commit or a frustration of
the other offense.
(c) One offense is necessarily included or necessary includes
the other.
· Note: where a single act results in the violation of different
laws or different provisions of the same law, the prosecution
for one will not bar the other so long as none of the
exceptions apply.
Same Act
· Double jeopardy will result if the act punishable under the
law and the ordinance are the same. For there to be double
jeopardy, it is not necessary that the offense be the same.
Supervening Facts
1) Under the Rules of Court, a conviction for an offense will
not bar a prosecution for an offense which necessarily
includes the offense charged in the former information
where:
(a) The graver offense developed due to a supervening fact
arising from the same act or omission constituting the former
charge.
(b) The facts constituting the graver offense became known or
were discovered only after the filing of the former
information.
(c) The plea of guilty to the lesser offense was made without
the consent of the fiscal and the offended party.
2) Under (1)(b), if the facts could have been discovered by the
prosecution but were not discovered because of the
prosecution’s incompetence, it would not be considered a
supervening event.
Effect of appeal by the accused
· If the accused appeals his conviction, he WAIVES his right to
plead double jeopardy. The whole case will be open to review
by the appellate court. Such court may even increase the
penalties imposed on the accused by the trial court.
· In Almario v. CA, the Court held that the delays were not
unreasonable; hence, there was no denial of the right to
speedy trial. Second, thedismissal was with the consent of the
accused. Hence, reinstatement did not violate the right
against double jeopardy.
N. EX POST FACTO LAWS AND BILL OF ATTAINDER
Section 22, Art. III. No ex post facto law or bill of attainder
shall be enacted.
Kinds of Ex Post Facto Laws
(1) One which makes an action done before the passing of the
law, and which was innocent when done, criminal, and
punishes such action.
(2) One which aggravates the crime or makes it greater than
when it was committed.
(3) One which changes the punishment and inflicts a greater
punishment than that which the law annexed to the crime
when it was committed.
(4) One which alters the legal rules of evidence and receives
less testimony than the law required at the time of the
commission of the offense in order to convict the accused.
(5) One which assumes to regulate civil rights and remedies
only BUT, in effect, imposes a penalty or deprivation of a
right, which, when done, was lawful.
(6) One which deprives a person accused of a crime of some
lawful protection to which he has become entitled such as the
protection of a former conviction or acquittal, or a
proclamation of amnesty. (In Re Kay VillegasKami)
Characteristics of Ex Post Facto Law
(a) Must refer to criminal matters
(b) Prejudicial to the accused
(c) Retroactive in application
· In Lacson v. Exec. Sec., the Court held that in general, ex
post facto law prohibits retrospectivity of penal laws. RA No.
8249 is not a penal law.... The contention that the new law
diluted their right to a two-tiered appeal is incorrect because
“the right to appeal is not a natural right but statutory in
nature that can be regulated by law. RA 8249 pertains only to
matters of procedure, and being merely an amendatory
statute it does not partake the nature of ex post facto law.”
· In Calder v. Bull, the Court said that when the law alters the
legal rules of evidence or mode of trial, it is an ex post facto
law. Exception: (Beazell v. Ohio) unless the changes operate
only in limited and unsubstantial manner to the disadvantage
of the accused.
· In Bayot v. Sandiganbayan, the accused was convicted by
the Sandiganbayan for estafa on May 30, 1980. Accused
appealed. On March 16, 1982, BP Blg. 195 was passed
authorizing suspension of public
officers against whom an information may be pending at any
stage. On July 22, 1982, the court suspended the accused. The
Supreme Court ruled that Art. 24 of the Revised Penal Code
that suspension of an officer during trial shall not be
considered a penalty. The suspension in the case is merely a
preventive and not a penal measure which therefore does not
come under the ex post facto prohibition.
BILL OF ATTAINDER
Bill of attainder – is a legislative act which inflicts punishment
without judicial trial. If the punishment be less than death,
the act is termed a bill of pains and penalties.” (Cummings v.
Missouri)
(All Bills of Attainder are Ex Post Facto Laws)
Elements of Bill of Attainder
1. There must be a law.
2. The law imposes a penal burden on a named individual or
easily ascertainable members of a group.
3. There is a direct imposition of penal burden without judicial
trial.
O. PRIVACY OF COMMUNICATION
Section 3(1), Art. III. The privacy of communication and
correspondence shall be inviolable except upon lawful order
of the court, or when public safety or order requires
otherwise, as prescribed by law.
Forms of Correspondences and Communication Covered
1. letters
2. messages
3. telephone calls
4. telegrams, and
5. the likes
Intrusion into the Privacy of Communication May Be
Allowed
1. Upon lawful order of the court, or
2. When public safety or order requires otherwise as
prescribed by law.
· When intrusion is made without a judicial order, it would
have to be based upon a government official's assessment
that public safety and orderdemand such intrusion.
Public Order and Safety – the security of human lives, liberty,
and property against the activities of invaders,
insurrectionists, and rebels.
 · RA No. 4200 known as the Anti-Wiretapping Law
provides penalties for specific violations of private
communication. Under Sec. 3 of the Actallows court-
authorized taps, under specific conditions for the
crimes of treason, espionage, provoking war and
disloyalty in case of war, piracy, mutiny in the high
seas, rebellion, conspiracy and proposal to commit
rebellion, inciting rebellion, sedition, conspiracy to
commit sedition, inciting to sedition, kidnapping.
P. RIGHT TO PRIVACY
· In Ople v. Torres, the right to privacy being a fundamental
right, the government has the burden of proof to show that a
statute (AO no. 308 in this case) is justified by some
compelling state interest and that it is narrowly drawn.
“In no uncertain terms, we also underscores that the right to
privacy does not bar all incursions into individual privacy. The
right is not intended to stifle scientific and technological
advancements that enhance public service and the common
good. It merely requires that the law be narrowly focused.”
Intrusions into the right must be accompanied by proper
safeguards and well-defined standards to prevent
unconstitutional invasions.
· In Roe v. Wade, the Court held that abortions are
permissible for any reason a woman chooses, up until the
"point at which the fetus becomes ‘viable,’ that is, potentially
able to live outside the mother's womb.
(a) The Constitution does not explicitly mention any right to
privacy but the Court has recognized that such right does exist
in the Constitution. The Court deemed abortion a
fundamental right under the United States Constitution,
thereby subjecting all laws attempting to restrict it to the
standard of strict scrutiny. Where certain “fundamental
rights” are involved, the Court has held that regulation
limiting these rights may be justified only by a “compelling
state interest.”
(b) The right to privacy is broad enough to encompass a
woman’s decision whether or not to terminate her pregnancy.
But a woman’s right to terminate her pregnancy at whatever
time, in whatever way and for whatever reason she alone
chooses is NOT absolute. While recognizing the right to
privacy, the Court also acknowledges that some state
regulation in areas protected by a right is appropriate. A state
may properly assert important interests in safeguarding
health, in maintaining medical standards, and in protecting
potential life.
Q. WRIT OF HABEAS DATA
Writ of habeas data – is a remedy available to any person
whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official
or employee, or of a private individual or entity engaged in
the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of
the aggrieved party.
· It is governed by The Rule on the Writ of Habeas Data (A.M.
No. 08-1-16- SC – full text), which was approved by the
Supreme Court on 22 January 2008. That Rule shall not
diminish, increase or modify substantive rights.
Constitutional Basis
Section 5(5), Art. VIII. Promulgate rules concerning the
protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission
to the practice of law, the integrated bar, and legal
assistance to the under-privileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of the
same grade, and shall not diminish, increase, or modify
substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless
disapproved by the Supreme Court.
· The Rule takes effect on 2 February 2008, following its
publication in three (3) newspapers of general circulation.
Who may file a petition for the issuance of a writ of habeas
data?
· General rule: The aggrieved party.
· Exceptions: In cases of extralegal killings and enforced
disappearances, the petition may be filed by:
(1) Any member of the immediate family of the aggrieved
party, namely: the spouse, children and parents; or
(2) Any ascendant, descendant or collateral relative of the
aggrieved party within the fourth civil degree of consanguinity
or affinity, in default of those mentioned in the preceding
paragraph.
Where can the petition be filed?
(1) Regional Trial Court where the petitioner or respondent
resides, or that which has jurisdiction over the place where
the data or information is gathered, collected or stored, at the
option of the petitioner.
(2) Supreme Court;
(3) Court of Appeals; or
(4) Sandiganbayan, when the action concerns public data files
of government offices.
· No docket and other lawful fees shall be required from an
indigent petitioner. The petition of the indigent shall be
docketed and acted upon immediately, without prejudice to
subsequent submission of proof of indigency not later than 15
days from the filing of the petition.
The verified written petition shall allege the following:
(a) The personal circumstances of the petitioner and the
respondent;
(b) The manner the right to privacy is violated or threatened
and how it affects the right to life, liberty or security of the
aggrieved party;
(c) The actions and recourses taken by the petitioner to
secure the data or
information;
(d) The location of the files, registers or databases, the
government office,and the person in charge, in possession or
in control of the data or information, if known;
(e) The reliefs prayed for, which may include the updating,
rectification, suppression or destruction of the database or
information or files kept by the respondent. In case of threats,
the relief may include a prayer for an order enjoining the act
complained of; and
(f) Such other relevant reliefs as are just and equitable.
When is the writ of habeas data issued?
Upon the filing of the petition, the court, justice or judge shall
immediately order the issuance of the writ if on its face it
ought to issue. The clerk of court shall issue the writ under the
seal of the court and cause it to be served within three (3)
days from its issuance; or, in case of urgent necessity, the
justice or judge may issue the writ under his or her own hand,
and may deputize any officer or person to serve it. The writ
shall also set the date and time for summary hearing of the
petition which shall not be later than ten (10) work days from
the date of its issuance.
· A clerk of court who refuses to issue the writ after its
allowance, or a deputized person who refuses to serve the
same, shall be punished by the court, justice or judge for
contempt without prejudice to other disciplinary actions.
· The writ shall be served upon the respondent by the officer
or person deputized by the court, justice or judge who shall
retain a copy on which to make a return of service. In case the
writ cannot be served personally on the respondent, the rules
on substituted service shall apply.
· The respondent shall file a verified written return together
with supporting affidavits within five (5) work days from
service of the writ, which period may be reasonably extended
by the Court for justifiable reasons.
Contents of Return
(a) The lawful defenses such as national security, state
secrets, privileged communication, confidentiality of the
source of information of media and others;
(b) In case of respondent in charge, in possession or in control
of the data or information subject of the petition:
(i) a disclosure of the data or information about the
petitioner, the nature of such data or information, and the
purpose for its collection;
(ii) the steps or actions taken by the respondent to ensure the
security and confidentiality of the data or information; and
(iii) the currency and accuracy of the data or information held;
and
(c) Other allegations relevant to the resolution of the
proceeding.
· When the respondent fails to file a return, the court, justice
or judge shall proceed to hear the petition ex parte, granting
the petitioner such relief as the petition may warrant unless
the court in its discretion requires the petitioner to submit
evidence.
· Instead of having the hearing in open court, it can be done in
chambers when the respondent invokes the defense that the
release of the data or information in question shall
compromise national security or state secrets, or when the
data or information cannot be divulged to the public due to its
nature or privileged character.
· The hearing on the petition shall be summary. However, the
court, justice or judge may call for a preliminary conference to
simplify the issues and determine the possibility of obtaining
stipulations and admissions from the parties.
· Upon its finality, the judgment shall be enforced by the
sheriff or any lawful officer as may be designated by the
court, justice or judge within five (5) work days.
· When a criminal action has been commenced, no separate
petition for the writ shall be filed, but the reliefs under the
writ shall be available by motion in the criminal case, and the
procedure under this Rule shall govern the disposition of the
reliefs available under the writ of habeas data.
· When a criminal action and a separate civil action are filed access official records but they
subsequent to a petition for a writ of habeas data, the can’t compel custodians of
petition shall be consolidated with the criminal action. After official records to prepare lists,
consolidation, the procedure under this Rule shall continue to abstracts, summaries and the
govern the disposition of the reliefs in the petition. like, such not being based on a
demandable legal right.
· The introduction of the Writ of Habeas Data into Philippine
Justice System complemented several writs used in the Then right to privacy belongs
Philippines. These writs which protect the rights of the to the individual and must be
individual against the state are as follows: invoked by the individual. A
· The Writ of Habeas Corpus – a writ ordering a public agency like the GSIS
person who detained another to produce the body cannot invoke the right to
and bring it before a judge orcourt. Its purpose is to privacy.
determine whether the detention is lawful or not; Baldoza v Dimaano 1976 Judges cannot prohibit access
to judicial records. However, a
· The Writ of Mandamus – a writ ordering a judge may regulate the
governmental agency to perform a ministerial manner in which persons
function; desiring to inspect, examine or
copy records in his office, may
· The Writ of Prohibition – a writ ordering a person to exercise their rights.
prohibit thecommission of an illegal act; Legaspi v Civil Service Personal interest is not
Commission required in asserting the right
· The Writ of Certiorari – a writ ordering a person to 1987 to information on matters of
correct anerroneous act committed with grave abuse public concern. What matters
of discretion; and constitute “public concern”
should be determined by the
· The Writ of Amparo– a writ designed to protect the court on a case to case basis.
most basic right of a human being. These are the right Chavez v PCGG 1998 Public concern (def.) – writings
to life, liberty andsecurity guaranteed by the coming into the hands of
Constitution. public officers in connection
with their official functions Ill-
R. ACCESS TO PUBLIC INFORMATION gotten wealth is, by its nature,
Section 7, Art. III. The right of the people to information on a matter of public concern.
matters of public concern shall be recognized. Access to Privileged communication: (1)
official records, and to documents and papers pertaining to national security, (2) trade
official acts, transactions, or decisions, as well as to secrets, (3) criminal matters
government research data used as basis for policy pending in court,
development, shall be afforded the citizen, subject to such
limitations as may be provided by law. Echegaray case SC held that making the Lethal
Injection Manual inaccessible
· the citizenry has a right to know what is going on in the to the convict was
country and in his government so he can express his views unconstitutional.
thereon knowledgeably and intelligently.

Rights Guaranteed S. FREEDOM OF EXPRESSION

1. Right to information on matters of public concern ; and Freedom of Speech – “at once the instrument and the
guaranty and the bright consummate flower of all liberty.”
2. Corollary right of access to official records and documents. (Wendell Philips)

· These are political rights that are available to citizens only

(Bernas, Philippine Constitution, p. 85).
Scope
Limitations: “As may be provided by law”
· Freedom of Expression is available only insofar as it is
Valmonte v Belmonte 1989 The people have a right to exercised for the discussion of matters affecting the public
interest. Purely private interest matters do not come within
the guaranty (invasion of privacy is not sanctioned by the
Constitution).
· covers ideas that are acceptable to the majority and the
unorthodox view.(One of the functions of this freedom is “to
invite dispute” – US Supreme Court; “I may not agree with
what you say, but I will defend to the death your right to say
it.” - Voltaire)
· The freedom to speak includes the right to silent. (This
freedom was meant not only to protect the minority who
want to talk but also to benefit the majority who refuse to
listen. - Socrates)
Importance
The ultimate good desired is better reached by a free trade in
ideas – that the best test of truth is the power of the thought
to get itself accepted in the competition of the market; and
that truth is the only ground upon which theirwishes safely
can be carried out.
Modes of Expression
(a) Oral and written language
(b) Symbolisms (e.g. bended knee, salute to the flag, cartoons)
Elements of Freedom of Expression
(1) Freedom from prior restraint or censorship
(2) Freedom from subsequent punishment
Freedom From Previous Restraint or Censorship
Section 4, Art. III. No law shall be passed abridging the
freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the
government for redress of grievances.
Censorship – conditions the exercise of freedom of expression
upon the prior approval of the government. Only those ideas
acceptable to it are allowed to be disseminated.
· Censor, therefore, assumes the role of arbiter for the people,
usually applying his own subjective standards in determining
the good and the not. Such is anathema in a free society.
· In New York Times v. United States, the Court held that
prohibition of “prior restraint” is not absolute, although any
system of prior restraint comes to court bearing a heavy
presumption against its constitutionality.
· In Near v. Minnesota, the exceptions to the prohibition of
“prior restraint is enumerated by the Court, thus: “When a
nation is at war, many things that might be said in time of
peace are such a hindrance to its effort .... Noone would
question but that government might prevent actual
obstruction to its recruiting service or the publication of
sailing dates of transports or the number or location of
troops.... The security of the community life may be protected
against incitements to acts of violence and the overthrow by
force of orderly government.”
· In SWS v. Comelec, Sec. 1 of RA No. 9006, the Fair Election
Act says that surveys affecting national candidates shall not
be published fifteen(15) days before an election and surveys
affecting local candidates shall not be published seven days
before an election. The provision is challenged as violative of
freedom of expression. The Court held that as prior restraint,
the rule is presumed to be invalid. The power of the Comelec
over media franchises is limited to ensuring “equal
opportunity, time, space and the right to reply” as well as to
reasonable rates of charges for the use of media facilities for
“public information and forums among candidates.” Here the
prohibition of speech is direct, absolute and substantial. Nor
does the rule pass the O'Brien test for content related
regulation because (1) it suppresses one type of expression
while allowing other types such as editorials, etc. and (2) the
restriction is greater than what is needed to protect
government interest because the interest can be protected by
narrower restriction such as subsequent punishment.
· In Re: Request for Radio-TV Coverage of the Estrada Trial,
the Court held that the propriety of the Estrada trial involves
the weighing out of the constitutional guarantees of freedom
of the press and the right to public information, on the one
hand, and the fundamental rights of the accused, on the other
hand, along with the constitutional power of a court to
control its proceedings in ensuring a fair and impartial trial...
With the possibility of losing not only the precious liberty but
also the very life of an accused, it behooves all to make
absolutely certain that an accused receives a verdict solely on
the basis of a just and dispassionate judgment...”
· The doctrine of freedom of speech was formulated primarily
for the protection of “core speech,” i.e., speech which
communicates political, social or religious ideas. Commercial
speech, however, does not.
Grosjeanvs American Press There need not be total
Co. suppression; even restriction
of circulation constitutes
censorship
Burgos vs Chief of Staff the search, padlocking and
sealing of the offices of
Metropolitan Mail and We
Forum by military
authorities, resulting in the
discontinuance of
publication of the
newspapers, was held to be
 prior restraint
Mutucvs COMELEC the COMELEC prohibition
against the use of taped
jingles in the mobile units
used in the campaign was
held to be unconstitutional,
as it was in the nature of
censorship
Sanidadvs COMELEC the Court annulled the
COMELEC prohibition against
radio commentators or
newspaper columnists from
commenting on the issues
involved in the scheduled
plebiscite on the organic
law creating the Cordillera
Autonomous Region as an
unconstitutional restraint on
freedom of expression
But...
Gonzales vs COMELEC the Court upheld the validity
of the law which prohibited,
except during the prescribed
election period, the making
of speeches, announcements
or commentaries for or
against the election of any
party or candidate for public
office.
JUSTIFICATION: the
inordinate preoccupation of
the people with politics
tended toward the neglect of
the other serious needs of
the nation and the pollution
of its suffrages.
Iglesiani Cristo vs CA The Board of Review for
Motion Pictures and
Television (BRMPT) has the
authority to review the
petitioner's television
program. However, the
Board acted with grave
abuse of discretion when it
gave an “X-rating” to the TV
program on the ground of
“attacks against another
religion.” Such a
classification can be justified
only if there is a showing
that the tv program would
create a clear and present
danger of an evil which the
State ought to prevent.
PrimiciasvsFugosos The respondent mayor could
only reasonably regulate, not
absolutely prohibit, the use
of public places for the
purpose indicated.
National Press Club vs the Supreme Court upheld
COMELEC the validity of Sec. 11(b), RA
6646, which prohibited any
person making use of the
media to sell or to give free
of charge print space or air
time for campaign
or other political purposes
except to the COMELEC. This
was held to be within the
power of the COMELEC to
supervise the enjoyment or
utilization of franchises for
the operation of
media of communication
and information, for the
purpose of ensuring equal
opportunity, time and space,
and the “right to reply,” as
well as uniform and
reasonable rates of charges
for the use of such media
facilities.
Osmeňavs COMELEC SC reaffirmed validity of RA
6646 as a legitimate exercise
of police power. The
regulation is unrelated to the
suppression of speech, as
any restriction on freedom
of expression occasioned
thereby is only incidental
and no more than is
necessary to achieve the
purpose of promoting
equality.
NOTE: This is not
inconsistent with the ruling
in PPI vs COMELEC, because
in the latter, SC simply said
that COMELEC cannot
procure print space without
paying just compensation.
Adiongvs COMELEC COMELEC's resolution
prohibiting the posting of
decals, and stickers in mobile
units like cars and other
moving vehicles was
declared unconstitutional for
infringement of freedom of
expression. Besides, the
constitutional objective of
 giving the rich and poor
candidates' equal
opportunity to inform the
electorate is not violated by
the posting of decals and
stickers on cars and other
vehicles.
“Overbreadth doctrine” =
prohibits the government
from achieving its purpose
by means that weep
unnecessarily broadly,
reaching constitutionally
protected as well as
unprotected activity; the
government has gone too
far; its legitimate interest
can be satisfied without
reaching so broadly into the
area of protected freedom.
Gonzales vs petitioner questioned the
katigbak classification of the movie as
“for adults only.” the
petition was dismissed
because the Board did not
commit grave abuse of
discretion.
Freedom From Subsequent Punishment
Section 18(1), Art. III. No person shall be detained solely by
reason of his political beliefs and aspirations.
· Without this assurance, the individual would hesitate to
speak for fear that he might be held to account for his speech,
or that he might be provoking the vengeance of the officials
he may have criticized.
· Not absolute; subject to police power and may be regulated
(freedom of expression does not cover ideas offensive to
public order)
Right of students to free speech in school premises not
absolute
General Rule: a student shall not be expelled or suspended
solely on the basis of articles he has written
Exception: when the article materially disrupts class work or
involves substantial disorder or invasion of rights of others,
the school has the right to discipline its students (in such a
case, it may expel or suspend the student)
Tests of valid governmental interference
(criteria in determining the liability of the individual for ideas
expressed by him) :
1. Clear and present danger rule
2. Dangerous tendency doctrine
3. Balance of interest test
1. Clear and Present Danger Rule – when words are used in
such circumstance and of such nature as to create a clear and
present danger that will bring about the substantive evil that
the State has a right to prevent. (As formulated by Justice
Holmes in Schenck v. United States)
Clear – causal connection with the danger of the substantive
evil arising from the utterance
Present – time element; imminent and immediate danger (the
danger must not only be probable but also inevitable).
(Gonzales v. Comelec)
· In ABS-CBN v. Comelec, the Comelec banned “exit polls” in
the exercise of its authority to regulate the holders of media
franchises during the lection period. It contends that “an exit
poll has the tendency to sow confusion considering the
randomness of selecting interviewees.... However, the Court
said that exit polls constitute an essential part of the
freedoms of speech and of the press. Hence, the Comelec
cannot ban totally in the guise of of promoting clean, honest,
orderly and credible elections. The ban does not satisfy the
clear and present danger rule because the evils envisioned are
merely speculative.
Terminiellovs City of · (speech inside an
Chicago auditorium with 800
persons)
· speech is often
provocative and
challenging. hence,
“fighting words” are not
sufficient to convict a
person absent a clear and
present danger of a serious
substantive evil
PrimiciasvsFugosos The respondent mayor
could only reasonably
regulate, not absolutely
prohibit, the use of
public places for the
purpose indicated.
· the condition of Manila at
that time did not justify the
mayor's fears. there was no
clear and present danger.
· decided in 1947
Navarro vs Villegas (compare with Primicias
case)
SC sustained respondent
mayor's act of refusing to
 issue a permit enabling
students to hold a public
rally. Mayor feared the rally
would result to public
disorder.
- decided in 1970
Reyes vsBagatsing the denial of a permit to
hold a public rally was
invalid as there was no
showing of the probability
of a clear and present
danger of an evil that might
arise as a result of the
meeting. The burden of
proving such eventually
rests on the Mayor.
2. Dangerous Tendency Doctrine – if the words uttered
create a dangerous tendency of an evil which the State has
the right to prevent.(Cabansag v.Fernandez)
· Justice Holmes, critique of this doctrine: Every idea is an
incitement. If believed, it is acted on unless some other belief
outweighs it, or some failure of energy stifles the movement
at its birth.
Bayan vs Executive (f) the Calibrated Pre-emptive
Secretary Ermita Response Policy is null and
void. Respondents are
enjoined from using it and to
strictly observe the
requirements of maximum
tolerance.
Cabansagvs Fernandez It is not necessary that some
definite or immediate acts of
force or violence be
advocated. It is sufficient that
such acts be advocated in
general terms. A mere
tendency toward the evil was
enough.
People vs Perez Accused declared: “The
Filipinos like myself must use
bolos for cutting off
(Governor- General) Wood's
head for having recommended
a bad thing for the Filipinos,
for he has killed our
independence.” He was
sentenced to jail.
3. Balance of Interest Test – when particular conduct is
regulated in the interest of public order, and the regulation
results in an indirect, conditional, partial abridgment of
speech, the duty of the courts is to determine which of the
two conflicting interests demands the greater protection
under the circumstances presented. (American
Communications Association v. Douds)
CLEAR AND DANGEROUS BALANCE OF INTEREST
PRESENT TENDENCY RULE RULE
DANGER
RULE
liberty is Authority is the issue is resolved in
preferred preferred the light of the
peculiarcircumstances
obtaining in each
particular case
· In Mutuc v. Comelec, the preferred freedom of expression
calls all the more the utmost respect when what may be
curtailed is the dissemination of information to make more
meaningful the equally vital right of suffrage.
When faced with border line situations where freedom (of
expression) to speak &freedom to know (to information) are
invoked against (vs.) maintaining free and clean elections- the
police, local officials and COMELEC should lean in favor of
freedom.
For in the ultimate analysis, the freedom of the citizen and the
State’s power to regulate are NOT ANTAGONISTIC.
There can be no free and honest elections if in the efforts to
maintain them, the freedom to speak and the right to know
are unduly curtailed.
We examine the limits of regulation. J. Feliciano shows that
regulation of election campaign activity may not pass the test
of validity if:
· It is too general in its terms
· Not limited in time and scope in its application
· It if restricts one’s expression of belief in a candidate or
one’s opinion ofhis or her qualifications,
· If it cuts off the flow of media reporting
· If the regulatory measure bears no clear and reasonable
nexus with theconstitutionally sanctioned objective.
The regulation strikes at the freedom of an individual to
express his preference and, by displaying it on his car, to
convince others to agree with him. A sticker may be furnished
by a candidate but once the car owner agrees to have it
placed in his private vehicle, the expression becomes a
statement by the owner, primarily his own and not of
anybody else.
· The general rule for a speech to be considered libelous or
defamatory is:
Libel = falsity + actual malice (uttered in full knowledge of its
falsity or with reckless disregard)
Exemption: When the subject of the supposed libelous or
defamatory material is a public officer. Defamatory words
may be uttered against them and not be considered libelous.
The reason is that 1) they asked for it (“they voluntarily thrust
themselves into the public eye and therefore should not be
thin-skinned”); 2) it’s a matter of public interest; and 3) public
figures have the opportunity and resources to rebut whatever
is said against them. (Policarpiovs Manila Times); ( New York
Times vs Sullivan)
· In New York Times v. Sullivan, The New York Times is
protected under the freedom of speech in publishing paid
advertisement, no matter if it contained erroneous claims and
facts. Said publication was not “commercial” in the sense that
it communicated information, expressed opinion, recited
grievances, protested claimed abuses, and sought a financial
support on behalf of a movement. That the Times was paid
for publishing the advertisement is as immaterial as the fact
that newspapers and books are sold.
Newspapers do not forfeit the protection they enjoy under
speech freedom just because they publish paid
advertisements. Otherwise, newspapers will be discouraged
from carrying “editorial advertisements” and so might shut off
an important outlet for the promulgation of information and
ideas by persons who do not themselves have access to
publishing facilities.
On errors: “Some degree of abuse is inseparable from the
proper use of every thing; and in no instance is this truer than
that of the press.” Erroneous statement is inevitable in free
debate.
Moreover, criticism of official conduct does not lose its
constitutional protection merely because it effective criticism
and hence diminishes their official reputations. Presence of
clear and present danger of substantive evil must be proved.
Actual Malice needs to be proved if a public official wants to
recover damages for a defamatory falsehood relating to his
official conduct. “Even a false statement may be deemed to
make a valuable contribution to public debate since it brings
about the clearer perception and livelier impression of truth,
produced by its collision with error.”
· In Gonzales v. Kalaw-Katigbak, KapitsaPatalim was classified
as “For Adults Only” by the MTRCB and was suggested to have
certain portions cut/ deleted.
Held: MTRCB do not have the power to exercise prior
restraint. The power of the MTRCB is limited to the
classification of films.
The test to determine whether a motion picture exceeds the
bounds ofpermissible exercise of free speech and, therefore
should be censored, is the clear and present danger test.
Assembly and Petition
· The right to assemble is not subject to prior restraint and
may not be conditioned upon the prior issuance of a permit or
authorization from the government authorities. However, the
right must be exercised in such a way that it will not prejudice
the public welfare. (De la Cruz v. Court ofAppeals)
· If assembly is to be held at a public place, permit for the use
of such place, and not for the assembly itself, may be validly
required. Power of local officials is merely for regulation and
not for prohibition. (Primicias v.Fugoso)
· Permit for public assembly is not necessary if meeting is to
be held in: a private place; the campus of a government-
owned or operated educational institution; and freedom park.
(B.P. Blg. 880 - “The Public Assembly Actof 1985')
· In JBL Reyes v. Bagatsing, retired J. JBL Reyes sought a
permit from the City of Manila to hold a march and rally on
Oct 26, 1983 2-5pm from Luneta to gates of US Embassy, and
was denied by the Mayor due to Vienna Convention
Ordinance and fear of subversives may infiltrate the ranks of
the demonstrators.
Held: no justifiable ground to deny permit because Bill of
Rights will prevail over Vienna Ordinance should conflict exist
(none proven because 500m not measured from gate to US
Embassy proper) and fear of serious injury cannot alone
justify suppression of free speech and assembly- only clear
and present danger of substantive evil.
Notes: the Court is called upon to protect the exercise of the
cognate rights to free speech and peaceful assembly…
TanadavsBagatsing SC sustained the
petitioner's motion
compelling the mayor of
Manila to issue a permit to
hold a rally, but changed
the meeting place to
UgarteField, a private park
MalabananvsRamento (several students were
suspended for 1 year for
conducting demonstration
in the premises of a
university outside the area
permitted by the school
authorities) SC emphasized
that the students did not
shed their constitutional
rights to free speech at the
schoolhouse gate, and
permitted the students to
re-enroll and finish their
 studies.
Villarvs TIP (several students were
barred from re-enrollment
for participating in
demonstrations) while the
Court upheld the academic
freedom of institutions of
higher learning, which
includes the right to set
academic standards to
determine under what
circumstances failing
grades suffice for expulsion
of students, it was held that
this right cannot be utilized
to discriminate against
those who exercise their
constitutional rights to
peaceful assembly.
Non vs Dames SC abandons its ruling in
Alcuazvs PSBA (that
enrolment of a student is a
semester-to-semester
contract and the school
may not be compelled to
renew the contract)
upholding the primacy of
freedom of expression,
because the students do
not shed theur
constitutionally protected
rights at the school
gate.
PBM Employees Assocvs PBM right to free assembly and
petition prevails over
economic rights.
Tests of a lawful assembly
(1) Purpose Test
· ideally, the test should be the purpose for which the
assembly is held, regardless of the auspices under which it is
organized
(2) Auspices Test
· EvengelistavsEarnshaw: the mayor of Manila prohibited the
members of the Communist Party from holding any kind of
meeting, revoking all permits previously granted by him on
the ground that the party had been found (by the fiscal's
office) to be an illegal association.
· In People v. Bustos, Bustos and several people sent
complaint letters via counsel against Justice of Peace Roman
Punsalan, who charged them with libel.
Held: Bustos and the others were acquitted,
Ratio: the guarantees of free speech and a free press include
the right to criticize judicial conduct. And these people did so
in proper channels without undue publicity, believing they
were right.
Right of Association
Section 8, Art. III. The right of the people, including those
employed in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to law
shall not be abridged.
The Right of Association is deemed embraced in freedom of
expression because the organization can be used as a vehicle
for the expression of views that have a bearing on public
welfare.
SSS Employees Assocvs CA right to organize does not
carry with it right to strike
VictorianovsElizalde Rope
Workers' Union
Occenavs COMELEC right of association was not
violated where political
parties were prohibited
from participating in the
barangay elections to
insure the non-partisanship
of the candidates.
In re Edillon Bar integration does not
compel the lawyer to
associate with anyone.
Integration does not make
a lawyer a member of any
group of which he is not
already a member.
T. OBSCENITY CASES
US vsKottinger SC acquitted accused who was
charged of having
offered for sale pictures of
half-clad members of
non-Christian tribes, holding
that he had only
presented them in their native
attire
People vs Go Pin Accused was convicted for
exhibiting nude
paintings and pictures,
notwithstanding his claim
that he had done so in the
interest of art. SC,
noting that he has charged
admission fees to the
 exhibition, held that his
purpose was commercial,
not merely artistic.
Pita vs CA SC declared that the
determination of what is
obscene is a judicial function.
Miller vs California Test of Obscenity:
· whether the average person,
applying
contemporary community
standards, would
find that the work, taken as a
whole,appeals to the prurient
interest
· whether the work depicts, in
a patently
offensive way, sexual conduct
specifically
defined by the applicable law
· whether the work, taken as a
whole, lacks
serious literary, artistic,
political or scientific
value
Justice Douglas, dissent: I do
not think we, the
judges, were ever given the
constitutional power tomake
definitions of obscenity.
Obscenity is a
hodgepodge.
- The Courts should not apply a national standard but the
standard of the
communityin which the material is being tested.
· In Reno v. ACLU, Communications Decency Act seek to
protect minors from obscenity on the internet.
· Held: overbroad, vague, unconstitutional.
· Notes: Sexual expression which is indecent but not obscene
is protected by the First Amendment.
The internet is not an “invasive” medium because it requires a
series of affirmative steps more deliberate and directed than
merely turning a dial (tv or radio).
There is no effective way to determine the identity or the age
of a user who is accessing material through email, mail
exploders, newsgroups or chat rooms.
The Community Standard as applied to the internet means
that any communication available to a nationwide audience
will be judged by the standards of the community most likely
to be offended by the message. The effect of CDA is such that
when a site is blocked for being “indecent” or “patently
offensive” the remaining content even if not indecent cannot
be viewed anymore. Imposition of requirements (adult
identification number or credit card) would bar adults who do
not have a credit card and lack the resources to obtain one
from accessing any blocked material. It burdens
communication among adults.
The CDA is punitive, a criminal statute. The CDA is a content-
based blanket restriction on speech, and as such, cannot be
properly analyzed as a form of time, place and manner
regulation.
· The CDA was replaced with Child Online Protection Act, 1.
The scope had been limited to material displayed only on the
world wide web. Chat and email were not included. The
classification of content was limited as “harmful to minors”
using the Miller V California Test. So, it was upheld by the
Supreme Court.
Notes: the Court’s Jurisprudence teaches that it is the
publisher’s responsibility to abide by that community’s
standards.
The fact that distributors of allegedly obscene materials may
be subjected to varying community standards in the various
federal judicial districts into which they transmit the materials
does not render a federal statute unconstitutional.
- Criticism of Official Conduct
Lagunzadvs Sotto Vda. de the Court granted the petition
Gonzales to restrain the public exhibition
of the movie “Moises Padilla
Story,” because it contained
fictionalized embellishments.
Being a public figure does not
destroy one's right to privacy.
Ayer Productions vs Judge the tribunal upheld the primacy
Capulong of freedom of
expression over Enrile's “right
to privacy,” because
Enrile was a public figure and a
public figure's right
to privacy is narrower than that
of an ordinary
citizen. Besides, the movie
“Four Days of Revolution (sabini
Cruz)” / “A Dangerous Life
(sabiniNachura)” / “The Four
Day Revolution
(sabisa case)” would not be
historically faithful
without including therein the
participation of Enrile in the
EDSA revolution.
US vsBustos SC compared criticism of official
conduct to a
“scalpel that relieves the
abscesses of officialdom”
People vs Alarcon newspaper publications tending
to impede,
obstruct, embarrass or
influence the courts in
administering justice in a
pending suit or proceeding
constitutes criminal contempt
which is
summarily punishable by the
courts.
In re Jurado a publication that tends to
impede, embarrass or
obstruct the court and
constitutes a clear and
present danger to the
administration of justice is
not protected by the guarantee
of press freedom
and is punishable by contempt.
It is not necessary that
publication actually obstructs
the administration of justice, it
is enough that it tends to do so.
In re Sotto a senator was punished for
contempt for having
attacked a decision of SC which
he called
incompetent and narrow-
minded, and announcing
that he would file a bill for its
reorganization
In re Tulfo Tulfo's “SangkatutaknaBobo”
column was held
contumacious. Freedom of the
press is subordinate to the
decision, authority and integrity
of the judiciary and the proper
administration of justice.
In re Laureta a lawyer was held in contempt
and suspended
from the practice of law for
wrting individual letters to
members of the SC division that
decided a case against his
client, arrogantly questioning
their decision
Zaldivarvs a member of the Bar who
Sandiganbayan imputed charges of
improper influence, corruption
and other misdeeds to
members of the Supreme Court
was suspended from the
practice of law as “neither the
right of free speech nor the
right to engage in political
activities can be so construed or
extended as to permit any such
liberties to a member of the
bar.”
U. FREEDOM OF RELIGION
Section 5, Art. III. No law shall be made respecting an
establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall
be required for
the exercise of civil or political rights.
Religion defined
· “any specific system of belief, worship, conduct, etc., often
involving a code of ethics and philosophy” (defined by Cruz)
· In Aglipayvs Ruiz religion is defined as “a profession of faith
to an active power that binds and elevates man to his Creator.
Two Guarantees Contained Section 5, Art. III of the
Constitution
(1) Non-establishment clause
(2) Free exercise of religious profession and worship
1. Non-establishment Clause
· reinforces Sec. 6, Art. II on the separation of church and
State
· other provisions which support this: Sec 2(5), Art. IX-C [a
religious sect or denomination cannot be registered as a
political party], Sec 5(2), Art. VI [no sectoral representative
from the religious sector], and Sec 29 (2), Art.VI [prohibition
against the use of public money or property for the benefit of
any religion, or of any priest, minister or ecclsiastic], Sec. 28
(3), Art. VI [exemption from taxation of properties actually,
directly and exclusively used for religious purposes, Sec 4(2),
Art XIV [citizenship requirement of
ownership of educational institutions except those owned by
religious groups], Sec 29(2), Art VI [appropriation allowed
where the minister is employed in the armed forces, penal
institution or government-owned orphanage or leprosarium]
Scope: The State
(a) cannot set up a church;
(b) cannot pass laws which aid one religion, all religions or
prefer one over another;
(c) cannot influence a person to go to or remain away from
church against his will; nor
(d) force him to profess a belief or disbelief in any religion. principle of equal treatment of
all religions, the State
Rationale: recognizes the validity of
marriages performed in
· to delineate boundaries between the two institutions; and conformity with the rites of
· to avoid encroachment by one against the other. Mohammedan religion
Rubivs Provincial Board the expression “non-Christian”
in “non-Christian tribes” was
not meant to discriminate. It
· A union of Church and State would either: refers to degree of civilization,
◦ tend to destroy government and to degrade religion; not to the religious belief.
or Islamic Da'wah Council of by arrogating to itself the task
◦ result in a conspiracy because of its composite the Philippines vs Office of of issuing halal
strength Exec. Sec. certifications, the State has, in
effect, forced Muslims to
· separation of church and state is not a wall of hostility accept its own interpretation
· The Government is neutral. It protects all, but prefers none of the Qur'an and Sunna on
and disparages none. halal food.
· Freedom of religion includes freedom from religion; the right
to worship includes right not to worship

· Intramural Religious Dispute – outside the jurisdiction of the

Two values sought to be protected by the non-establishment secular authorities
clause:
Gonzales vs Archbishop of where a civil right depends
(1) Voluntarism – the growth of a religious sect as a social Manila upon some matter pertaining
force must come from the voluntary support of its members to ecclesiastical affairs, the
because of the belief that both spiritual and secular society civil tribunal tries the civil
will benefit if religions are allowed to compete on their own right and nothing more.
intrinsic merit without benefit of official patronage. Fonacier v CA where the dispute involves
the property rights of the
(2) Insulation of the political process from interfaith religious group, or the
dissension – voluntarism cannot be achieved unless the relations of the members
political process is insulated from religion and unless religion where the property rights are
is insulated politics. involved, the civil courts may
assume jurisdiction.
Engel vs Vitale recitation by students in public
schools in New York of a prayer
composed by the Board of 2. Free Exercise Clause
Regents was unconstitutional
Everson vs Board of US Supreme Court sustained Two Aspects of Free Exercise Clause:
Education the law providing free
transportation for all 1. Freedom to Believe
schoolchildren without
discrimination, including those (a) absolute
attending parochial schools (b) includes not to believe
Board of Education vs Allen US Supreme Court sustained (c) “everyone has a right to his beliefs and he may not be
the law requiring the called to account because he cannot prove what he believes”
petitioner to lend textbooks
free of charge to all students 2. Freedom to Act According to One's Beliefs
from grades 7-12, including
those attending private schools (a) happens when the individual externalizes his beliefs in acts
In Everson and Allen, the government aid was given directly to or omissions
the student and parents, not to the church-related school
Adongvs Cheong Seng Gee in line with the constitutional
(b) subject to regulation; can be enjoyed only with proper
regard to rights of others
(c) Justice Frankfurter: the constitutional provision on
religious freedom terminated disabilities, it did not create
new privileges... its essence is freedom from conformity to
religious dogma, not freedom from conformity to law because
of religious dogma
German vsBarangan
Ebralinagvs division
Superintendent of Schools of
Cebu
People vsZosa
VictorianovsElizalde Rope
Workers Union
American Bible Society vs City
of Manila
Tolentinovs Sec. of Finance
SC found that petitioners
were not sincere in
their profession of religious
liberty and were
using it merely to express
their opposition to
the government
SC reversed Gerona vs Sec.
of Educ. , and
upheld the right of
petitioners to refute to
salute the Philippine flag on
account of their
religious scruples. To
compel students to
take part in a flag ceremony
when it is against
their religious beliefs will
violate their religious
freedom.
invocation of religious
scruples in order to avoid
military service was
brushed aside bythe SC
SC upheld the validity of RA
3350, exempting
members of a religious sect
from being
compelled to join a labor
union
the constitutional
guarantee of free exercise
carries with it the right to
disseminate information,
and any restraint of such
right can be justified only
on the ground that there is
a clear and present danger
of an evil which the State
has the right to prevent;
Hence, City ordinance
imposing license fees to on
sale is inapplicable to the
society
the free exercise clause
does not prohibit imposing
a generally applicable sales
and use tax on the sale of
religious materials; the
registration fee is not
imposed for theexercise of
a privilege, but only for the
purposeof defraying part of
the cost of registration
· Compelling State Interest test [Estrada vsEscritor]
· the constitution's religion clause's prescribe not a strict
buabenevolent neutrality (which recognizes that government
mustpursue its secular goals and interests, but at the same
time, strive to uphold religious liberty to the greatest extent
possible within flexible constitutional limits
· benevolent neutrality could allow for accomodation morality
based on religion provided it does not offend the compelling
state interesttest.
· two steps (as regards the test):
▪ inquire whether respondent's right to religious
freedomhas been burdened; and
▪ ascertain respondent's sincerity in her religious
belief.
· In CentenovsVillalon-Pornillos, the Court held that
solicitiations for religious purposes requires not a prior permit
from DSWD as it is not included in solicitations for “charitable
or public welfare purposes.”
Religious Tests
· Purpose: to stop government's clandestine attempts to
prevent a person from exercising his civil of political rights
because of his religious beliefs.
· In Pamil v. Teleron, Sec. 2175 of the Revised Adminsitrative
Code is questioned whether or not it is consistent with the
religious clause of the Constitution. Said Code disqualifies an
“ecclesiastic” from being elected or appointed to a municipal
office. Seven Justices voted to consider this a prohibited
“religious test.” Five justices said it is not a religious test but a
safeguard against the constant threat of union of Church and
State that has marked the Philippine history. (Hence, since the
majority vote needed under the 1973 Constitution to nullify a
statute was not reached, thedisqualification remains
enforceable.)
People vsZosa invocation of religious scruples
in order to avoid military
service was brushed aside by
the SC

V. RIGHT TO TRAVEL
Section 6, Art. III. The liberty of abode and of changing the
same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall
the right to travel be impaired except in the interest of
national security, public safety, or public health, as may be
provided by law.
Liberty Guaranteed by Sec. 6 Art. III
1. freedom to choose and change one's place of abode; and
2. freedom to travel both within the country and outside
Limitations
· Liberty of Abode – “upon lawful order of the court”
· Right to Travel – “national security, public safety or public
health as may be provided by law”
Cauncavs Salazar 82 Phil 851 Whether a maid had the
right to transfer to another
residence even if she had
not paid yet the amount
advances by an
employment agency:
Yes. The fortunes of
business cannot be
controlled by controlling a
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 The respondents were
Mindoro 1919 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
SalongavsHermoso97 SCRA 121
Lorenzo vs Dir. ofHealth1927
Manotokvs CA 1986
Marcos vsManglapus1989
Philippine Association of Service
Exporters vsDrilon
1988
a law allowing such.
the case became moot and
academic when the permit
to travel abroad was issued
before the case could be
heard.
Laws for the segregation of
lepers have been provided
the world over and is
supported by high scientific
authority. Such segregation
is premised on the duty to
protect public health.
Bail posted in a criminal
case, is a valid restriction
on 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.
The liberty of abode and
the right to travel includes
the right to leave, reside
and travel within one’s
country but it does not
include the right to return
to one’s country.
NOTE: Court warned that
this case should not create
a precedent because
Marcos was a class in
himself.
Right to travel may be
impaired in the interest of
national security, public
health or public order, as
may be provided by law.
An order temporarily
suspending the
deployment of overseas
workers is constitutional
for having been issued in
the interest of the safety of
OFWs, as provided by the
Labor Code.
 Distinction of Public International Law with Municipal Law
Municipal Law Public International Law
1. Issued by a political 1. Not imposed upon but
superior for observance by simply adopted by states as a
those under its authority; common rule of action
among themselves;
2. Consists mainly of 2. derived not from any
enactments from the law- particular legislation but
making authority of each from such sources as
state; international customs,
international conventions
and the general principles of
law;
3. Regulates the relations of 3. Applies to the relations
individuals among themselves inter se of states and other
or with their own states; international persons;
4. Violations are redressed 4. Questions are resolved
through local administrative through state-to-state
and judicial processes; and, transactions ranging from
peaceful methods like
by PORFERIO JR. and MELFA SALIDAGA negotiation and arbitration
to the hostile arbitrament of
force like reprisals and even
war; and,
CODES AND NOTES ON PUBLIC INTERNATIONAL LAW 5.breaches generally entail 5. responsibility of infractions
NOTES ON PUBLIC INTERNATIONAL LAW only individual responsibility. is usually collective in the
sense that it attaches directly
to the state and not to its
nationals.

CHAPTER 1 Public International Law in Relation to Municipal Law

GENERAL PRINCIPLES
Nature and Scope
Public International Law – It is the body of rules and
principles that are recognized as legally binding and which
govern the relations of states and other entities invested with
international legal personality. Formerly known as “law
ofnations” coined by Jeremy Bentham in 1789.
Three Major Parts of Public International Law
1. Laws of Peace – normal relations between states in the
absence of war.
2. Laws of War – relations between hostile or belligerent
states during wartime.
3. Laws of Neutrality – relations between a non-participant
state and a participant state during wartime. This also refers
to the relations among non-participating states.
Sources of Public International Law
1. International conventions
2. International custom
3. The general principles of law recognized by civilized
nations. (e.g. prescription, pactasuntservanda, and estoppel).
In the paquete Habana, Justice Gray said: “the law of nations,
although not specially adopted by the Constitution or any
municipal act, is essentially a part of the law of the land.”
Doctrine of Incorporation – the rules of international law
form part of the law of the land and no further legislative
action is needed to make such rules applicable in the
domestic sphere. (Sec. of Justice v. Lantion GRN 139465, Jan.
18,2000)
This doctrine is followed in the Philippines as embodied in Art.
II, Sec. 2 of the 1987 Constitution which provides that: “The
Philippines…adopts the generally accepted principles of
international law as part of the law of the land…” However,
no primacy is implied.
It should be presumed that municipal law is always enacted
by each state with due regard for and never in defiance of the
generally accepted principles of international law. (Co Kim
Chan v. Valdez Tan Keh).
It is a settled principle of international law that a sovereign
cannot be permitted toset up his own municipal law as a bar
to a claim by foreign sovereign for a wrong done to the
latter's subject. (US v Guatemala).
Constitution v. Treaty
Generally, the treaty is rejected in the local forum but is
upheld by international tribunals as ademandable obligation
of the signatories under the principle of pactasuntservanda.
PactaSuntServanda– international agreements must be
performed in Good Faith. A treaty engagement is not a mere
moral obligation but creates a legally binding obligation on
the parties. A state which has contracted a valid international
obligation is bound to make in its legislation such
modifications as may be necessary to ensure the fulfillment of
the obligations undertaken.
The Philippine Constitution however contains provisions
empowering the judiciary to annul treaties thereby
establishing the primacy of the local law over the
international agreement.
Art. X, Sec. 2(2) provides that “all cases involving the
constitutionality of any treaty, executive or law shall be heard
and decided by the Supreme Court en banc, and no treaty,
executive agreement or law may be declared unconstitutional
without the concurrence of ten justices.”
The Constitution authorizes the nullification of a treaty not
only when it conflicts with the Constitution but also when it
runs counter to an act of Congress. (Gonzales v. Hechanova).
Basis of Public International Law
Three theories on this matter:
1. The Naturalist – under this theory, there is a natural and
universal principle of right and wrong, independent of any
mutual intercource or compact, which is supposed to be
discovered and recognized by every individual through the
use of his reason and his conscience.
2. The Positivist – under this theory, the binding force of
international law is derived from the agreement of sovereign
states to be bound by it. It is not a law of subordination but of
coordination.
3. The Eclectics or Groatians– this theory offers both the law
of nature and the consent of states as the basis of
international law. It contends that thesystem of international
law is based on the “dictate of right reason” as well as “the
practice of states.”
Sanctions of Public International Law
Sanctions – the compulsive force of reciprocal advantage and
fear of retaliation.
1. The inherent reasonableness of international law that its
observance will redound to the welfare of the whole society
of nations;
2. The normal habits of obedience ingrained in the nature of
man as a social being;
3. To project an agreeable public image in order to maintain
the goodwill and favorable regard of the rest of the family of
nations;
4. The constant and reasonable fear that violations of
international law might visit upon the culprit the retaliation of
other states; and,
5. The machinery of the United Nations which proves to be an
effective deterrent to international disputes caused by
disregard of the law of nations.
Enforcement of Public International Law
States are able to enforce international law among each other
through international organizations or regional groups such as
the United Nations and the Organization of American States.
These bodies may adopt measures as may be necessary to
compel compliance with international obligations or vindicate
the wrong committed.
Functions of Public International Law
1. To establish peace and order in the community of nations
and to prevent the employment of force, including war, in all
international relations;
2. To promote world friendship by levelling the barriers, as of
color or creed;
3. To encourage and ensure greater international cooperation
in the solution of certain common problems of a political,
economic, cultural or humanitarian character; and,
4. To provide for the orderly management of the relations of
states on the basis of the substantive rules they have agreed
to observe as members of the international community.
Distinctions with Other Concepts
International morality or ethics – embodies those principles
which govern the relations of states from the higher
standpoint of conscience, morality, justice andhumanity.
International diplomacy – relates to the objects of national or
international policy and the conduct of foreign affairs or
international relations.
International administrative law – that body of laws and
regulations created by the action of international conferences
or commissions which regulate the relations and activities of
national and international agencies with respect to those
material and intellectual interests which have received an
authoritative universal recognition.
CHAPTER 2
THE INTERNATIONAL COMMUNITY
International Community – the body of juridical entities
which are governed by the law of nations.
Composition of International community:
1. State
2. United Nations
3. the Vatican City
4. Colonies and dependencies
5. Mandates and trust territories
6. International administrative bodies
7. Belligerent communities
8. Individuals
1. States
State – a group of people living together in a definite territory
under an independent government organized for political
ends and capable of entering into international relations.
Some writers no loner recognized the distinction between
state and nation, pointing out that these two terms are now
used in an identical sense. Nevertheless, a respectable
number of jurists still hold that the state is a legalconcept, the
nation is only a racial or ethnic concept.
Elements of A State
1. People
2. Territory
3. Government
4. Sovereignty
A. People – the inhabitants of the State.
People must be numerous enough to be self-sufficing and to
defend themselves, and small enough to be easily
administered and sustained. They are aggregate of individuals
of both sexes who live together as a community despite racial
or cultural differences.
• Groups of people which cannot comprise a State:
◦ Amazons – not of both sexes; cannot perpetuate
themselves
◦ Pirates – considered as outside the pale of law,
treated as an enemy of all mankind; “hostishumani
generis”
B. Territory – the fixed portion of the surface of the earth
inhabited by the people of the State.
The size is irrelevant. (San Marino v. China). But, practically,
must not be too big as to be difficult to administer and
defend; but must not be too small as tounable to provide for
people’s needs.
C. Government – the agency or instrumentality through which
the will of the State is formulated, expressed and realized.
D. Sovereignty – the power to direct its own external affairs
without interference or dictation from other states.
Classification of States
1. Independent states – having full international personality.
• Sovereignty – connotes freedom in the direction by
the state in its owninternal and external affairs.
• However international law is concerned only with
this freedom in so far asit relates to external affairs;
hence, a state which is not subject to dictationfrom
others in this respect is known as an independent
state.
2. Dependent states – exemplified by the suzerainty and the
protectorate and are so called because they do not have full
control of their external relations.
• Dependent states fall into two general categories: the
protectorate and the suzerainty. However, there is no
unanimity as to their basic distinctions in terms of measure of
control over its external affairs.
3. Neutralized states – an independent state, whether it be
simple or composite, may be neutralized through agreement
with other states by virtue of which the latter will guarantee
its integrity and independence provided it refrains from taking
any act that will involve it in war or other hostile activity
except for defensive purposes.
Classification or Types of An Independent State
1. Simple state – one which is placed under a single and
centralized government exercising power over both its
internal and external affairs (e.g. Philippines and Holland).
2. Composite state – one which consists two or more states,
each with its own separate government but bound under
central authority exercising, to a greater or less degree,
control over their external relations.
Kinds or Categories of Composite States:
a) Real Union – created when two or more states are merged
under a unified authority so that they form a single
international person through which they act as one entity
(e.g. Norway and Sweden from 18154 to 1905).
b) Federal Union (or a federation) – is a combination of two
or more sovereign states which upon merger cease to be
states, resulting in the creation of a new state with full
international personality to represent them in their external
relations as well as a certain degree of power over the
domestic affairs and their inhabitants (e.g. German Empire
under the Constitution of 1871).
c) Confederation – an organization of states which retain their
internal sovereignty and, to some degree, their external
sovereignty, while delegating to the collective body power to
represent them as a whole for certain limited and specified
purposes (e.g. German states in 1866 until they eventually
developed into a more closely-knit federation).
d) Personal Union – comes into being when two or more
independent states are brought together under the rule of
the same monarch, who nevertheless does not constitute one
international person for the purpose of representing any or all
of them. Strictly speaking therefore, the personal union is not
a composite state because no new international person is
created to represent it in international relations (e.g. Belgium
and the Former Congo Free State from 1885 to 1905).
2. The United Nations
Although the United Nations is not a state or a super-state but
a mere organization of states, it is regarded as an
international person for certain
purposes.
• It enjoys certain privileges and immunities, such as non-
suability,inviolability of its premises and archives, and
exemption from taxation.
• It can assert a diplomatic claim on behalf of its officials,
and treatiesmay also be concluded by it through the General
Assembly, the SecurityCouncil, and the Economic and Social
Council.
• Trust territories are supposed to be under its residual
sovereignty.
3. The Vatican City
In 1928, Italy and the Vatican concluded the Lateran Treaty
“for the purpose ofassuring to the Holy See absolute and
visible independence and of guaranteeingto it absolute and
indisputable sovereignty in the field of international
relations.”
4. Colonies and Dependencies
From the viewpoint of international law, a colony or a
dependency is part andparcel of the parent state, through
which all its external relations are transactedwith other
states.
Nevertheless, such entities have been allowed on occasion to
participate intheir own right in international undertakings
and granted practically the statusof a sovereign state. It is
when acting in this capacity that colonies anddependencies
are considered international persons.
5. Mandates and Trust Territories
The system of mandates was established after the first World
War in order toavoid outright annexation of the
underdeveloped territories taken from thedefeated powers
and to place their administration under some form
ofinternational supervision.
Three Kinds of Trust Territories:
1. Those held under mandate under the League of Nations;
2. Those territories detached from the defeated states after
World War II;and,
3. Those voluntarily placed under the system of the states
responsible fortheir administration.
These territories enjoy certain rights directly available to them
under the United Nations Charter that vest them with a
degree of international personality. Theyare not however
sovereign.
6. Belligerent Communities
When a portion of the population rises up in arms against the
legitimategovernment of the state, and such conflict widens
and aggravates, it maybecome necessary to accord the rebels
recognition of belligerency.
For purposes of the conflict, and pending determination of
whether or not thebelligerent community should be fully
recognized as a state, it is treated as aninternational person
and becomes directly subject to the laws of war andneutrality.
7. International Administrative Bodies
Certain administrative bodies created by agreement among
states may be vestedwith international personality (e.g.
International Labor Organization, WorldHealth Organization).
Two Requisites for International Administrative Bodies to be
Vested withInternational Personality:
1. Their purposes are mainly non-political; and that
2. They are autonomous, i.e. not subject to the control of any
state.
8. Individuals
Traditional concept regards the individual only as an object of
international lawwho can act only through the instrumentality
of his own state in matters involvingother states.
Of late, however, the view has grown among many writers
that the individual isnot merely an object but a subject of
international law. One argument is that theindividual is the
basic unit of society, national and international, and
musttherefore ultimately governed by the laws of this society.
CHAPTER 3
THE UNITED NATIONS
The United Nations emerged out of the travail of World war II
as symbol of man'sundismayed determination to establish for
all nations a rule of law that wouldforever banish the terrible
holocaust of war in the so9lution of internationaldisputes.
The first formal step toward the creation of the United
Nations was the MoscowDeclaration, signed by the
representatives of China, the Soviet Union, the
UnitedKingdom, and the United States.
The U.N. Charter
The United Nations Charter – a lengthy document consisting
of 111 articlesbesides the preamble and the concluding
provisions. It also includes the Statuteof the International
Court of Justice which is annexed to and made an integralpart
of it.
In one sense, the Charter maybe considered a treaty because
it derives itsbinding force from the agreement of the parties
to it. In another sense, it maybe regarded as a constitution in
so far as it provides for the organization andoperations of the
different organs of the United Nations and for the adoption
ofany change in its provisions through formal process of
amendment.
The Charter is intended to apply not only to the members of
the Organization butalso to non-member states so far as may
be necessary for the maintenance ofinternational peace and
security.
Amendments to the Charter shall come into force by a vote of
two-thirds of themembers of the General Assembly and
ratified in accordance with theirrespective constitutional
processes by two-thirds of the Members of the
UnitedNations.
The Preamble to the Charter
The preamble introduces the Charter and sets the common
intentions that movedthe original members to unite their will
and efforts to achieve their commonpurposes.
Purposes
The purposes of the Charter are expressed in Article 1 as
follows:
1. Maintain international peace and security;
2. Develop friendly relations among nations;
3. Achieve international cooperation in solving international
problems;
4. Be a center for harmonizing the actions of nations in the
attainment ofthese common ends.
Principles
The Seven Cardinal Principles ( as enumerated in Article 2):
1. The Organization is based on the principle of the sovereign
equality of allits members;
2. All Members shall fulfill in good faith the obligations
assumed by themin accordance with the present Charter;
3. All Members shall settle their international disputes by
peacefulmeans;
4. All Members shall refrain in their international relations
from the threat oruse of force against the territorial integrity
or political independenceof any state;
5. All Members shall give the United Nations every
assistancein anyaction it takes in accordance with the present
Charter;
6. The Organization shall ensure that states which are not
Members of theUnited Nations act in accordance with these
Principles; and,
7. Nothing contained in the present Charter shall authorize
the UnitedNations to intervene in matters which are
essentially within thedomestic jurisdiction of any state.
Membership
Two Kinds of members in the United Nations
1. Original – those which, having participated in the United
NationsConference on International Organization at San
Francisco or havingpreviously signed the Declaration by the
United Nations of January 1,1942, signed and ratified the
Charter of the United Nations.
• Interestingly, the Philippines was included as
original member althoughit was not yet a state at the
time.
2. Elective
In addition to the original members, other members may be
admitted to the United Nations by decision of the General
Assembly upon the favorable recommendation of the Security
Council.

Membership Qualifications to the United Nations
1. It must be a state;
2. It must be peace-loving;
3. It must accept the obligations of the Charter;
4. It must be able to carry out these obligations; and,
5. It must be willing to carry out these obligations;
Suspension of Members
As in the case of admission, suspension is effectedby two-
thirds of those present and voting in General Assembly upon
the favorable recommendation of at least nine members of
the Security Council, including all its permanent members.
The suspension may be lifted alone by the Security Council,
also by a qualified majority vote. Nationals of the suspended
member may, however, continue serving in the Secretariat
and the International Court of Justice as they are regarded as
international officials or civil servants acting for the
Organization itself.
Since suspension affects only its rights and privileges, the
member is still subject to the discharge of its obligations
under the Charter.
Expulsion of Members
A member which has persistently violated the principles
contained in the Charter may be expelled by two-0thirds of
those present and voting in the General Assembly upon the
recommendation of the Security Council by a qualified
majority vote.
Withdrawal of Members
No provision on withdrawal of membership was included in
the Charter because
of the fear that it might encourage successive withdrawals
that would weaken the Organization.
Organs of the United Nations
1. The General Assembly
2. The Security Council
3. The Economic and Social Council
4. The Trusteeship Council
5. The International Court of Justice
6. The Secretariat
A. The General Assembly
It consists of all the members of the Organization, each of
which is entitled to send not more than five representatives
and five alternates as well as such technical staff as it may
need.
• Functions of the General Assembly
◦ Deliberative - such as initiating studies and
makingrecommendations;
◦ Supervisory – such as receiving and considering
annual and specialreports from the other
organs;
◦ Financial – such as consideration and approval of
budget of theOrganization;
◦ Elective – such as the election of non-permanent
members of theSecurity Council;
◦ Constituent – such as the admission of members
and the amendmentof the Charter.
B. The Security Council
The key organ of the United Nations of international peace
and security is the Security Council.
It consists of five permanent members and ten elective
members. The elective members are elected for two-year
terms.
C. The Economic and Social Council
The responsibility for the promotion of international
economic and socialcooperation is vested in the General
Assembly, and under its authority, theEconomic and Social
Council. Specifically these organs should exert effortstoward:
• higher standards of living, full employment, and
conditions of economicand social progress and
development;
• solutions of international economic, social, health
and related problems, and international, cultural and
educational cooperation; and,
• universal respect for human rights and fundamental
freedoms for allwithout distinction as to race, sex,
language or religion.
D. The Trusteeship Council
It is the organ charged with the duty of assisting the Security
Council and the General Assembly in the administration of the
international trusteeship system.
E. The International Court of Justice
It functions in accordance with the Statute. All members of
the Organization are ipso facto parties to the Statute. A non-
member may become a party on conditions to be determined
in each case by the General Assembly upon the
recommendation of the security Council.
The principal functions of the Court are:
• to decide contentious cases; and,
• render advisory opinions.
The jurisdiction of the Court is based on the consent of the
parties as manifested under the “optional jurisdiction clause”
in Article 36 of the Statute. Advisory opinions may be given by
the Court upon request of the General
Assembly or the Security Council, as well as other organs of
the United Nations, when authorized by the General
Assembly, on legal questions arising within the scope of their
activities.
F. The Secretariat
It is the chief administrative organ of the United Nations
which is headed by the Secretary-General.
The Secretary-General is chosen by the General Assembly
upon the recommendation of the Security Council. His term is
fixed at five years by resolution of the general Assembly, and
he may be re-elected.
The Secretary-General is the highest representative of the
United Nations and is authorized to act in its behalf. When
acting in this capacity, he is entitled to full diplomatic
immunities and privileges which only the Security Council may
waive.
The Secretary-General also acts as secretary in all meetings of
the General Assembly, the Security Council, the Economic and
Social Council and the Trusteeship Council and performs such
other functions as may be assigned to him by these organs.
In addition, he prepares the budget of the United Nations for
submission to the General Assembly, provides technical
facilities to the different organs of the Organization, and in
general coordinates its vast administrative machinery.
CHAPTER 4
THE CONCEPT OF THE STATE
As the basic unit of the international community, the state is
the principal subject of international law.
Creation of the State
Four Essential Elements of the State
1. People
2. Territory
3. Government
4. Sovereignty
Methods by which Status of A State is Acquired
1. Revolution
2. Unification
3. Secession
4. Assertion of independence
5. AgreementsAttainment of civilization
The Principle of State Continuity
From the moment of its creation, the state cointinues as a
juristic being notwithstanding changes in its circumstances,
provided only that they do not result in loss of any of its
essential elements.
Extinction of the State
Nevertheless, it is error to suppose that a state is immortal.
There are instances when a radical impairment or actual loss
of one or more of the essential elements of the state will
result in its extinction.
Succession of States
State succession takes place when one state assumes the
rights and some of
the obligations of another because of certain changes in the
condition of the latter.
Universal Succession – when a state is annexed to another
state or is totally dismembered or merges with another state
to form a new state.
Partial Succession – when a portion of the territory of a state
secedes or is ceded to another or when an independent state
becomes a protectorate or a suzerainty or when a dependent
state acquires full sovereignty.
Consequences of State Succession
• The allegiance of the inhabitants of the predecessor state in
the territory affected is transferred to the successor state.
• The political laws of the former sovereign are automatically
abrogated and may be restored only by a positive act on the
part of the new sovereign.
• Treaties of a political and even commercial nature are also
discontinued, but the successor state is bound by treaties
dealing with local rights and duties.
• All rights of the predecessor state are inherited by the
successor state but this is not so where the liabilities are
concerned.
Succession of Governments
One government replaces another either peacefully or by
violent methods. In both instances, the integrity of the state is
not affected; the state continues as thesame international
person except only
that its lawful representative is changed.
The rule is that where the new government was organized by
virtue of a constitutional reform, the obligations of the
replaced government are also completely assumed by the
former.
Conversely, where the new government was established
through violence, it may lawfully reject the purely personal or
political obligations of the predecessor government but not
those contracted by it in the ordinary course of official
business.
CHAPTER 5
RECOGNITION
Even if an entity has already acquired the elements of
international personality, it is not for this reason alone
automatically entitled to membership in the family of nations.
Its admission thereto is dependent on:
• as reflective of the majority theory, the
acknowledgment of its status bythose already within
the fold and their willingness to enter into relations
with it as a subject of international law (declaratory);
• as reflective of the minority theory, the
acknowledgment is mandatoryand legal and may be
demanded as a matter of right by any entity that
canestablish its possession of the four essential
elements of a state (constitutive).
Objects of Recognition
Recognition may be extended to:
a. State, which is generally held to be irrevocable and imports
the recognition of its government;
b. Government, which may be withdrawn and does not
necessarily signify the existence of a state as the government
may be that of a mere colony; and,
c. Belligerency, which does not produce the same effects as
the recognition of states and governments because the rebels
are accorded international personality only in connection with
the hostilities they are waging.
Kinds of Recognition
1. Express recognition – may be verbal or in writing;
2. Implied recognition – when the recognizing state enters
into official intercourse with the new member by exchanging
diplomatic representatives with it, etc.
The Act of Recognition is Indicative of the Following
Intentions
1. To treat with the new state as such;
2. To accept the new government as having authority to
represent the state;
3. To recognize in the case of insurgents that they are entitled
to exercise belligerent rights.
Recognition of State
The recognition of a new state is the free act by which one or
more states acknowledge the existence on a definite territory
of a human society politically organized, independent of any
other existing state, and capable of observing the obligations
of international law, and by which they manifest therefore
their intention to consider it a member of the international
community.
Recognition of Governments
The recognition of the new government of a state which has
been already recognized is the free act by which one or
several states acknowledge that a person or a group of
persons are capable of binding the state which they claim to
represent and witness their intention to enter into relations
with them.
Two Kinds of Governments
1. De Jure
2. De facto
Three Kinds of De Facto Government
1. That which is established by the inhabitants who rise in
revolt against and depose the legitimate regime;
2. That which is established in the course of war by the
invading forces of one belligerent in the territory of other
belligerent, the government of which is also displaced; and,
3. That which is established by the inhabitants of a state who
secede therefrom without overthrowing its government.

Tobar or Wilson Principle – recognition shall not be extended
to any government established by revolution, civil war, coup
d'etat or other forms of internal violence until the freely
elected representatives of the people have organized a
constitutional government.
In any event, the practice of most states now is to extend
recognition to a new government only if it is shown that it has
control of the administrative machinery of the state with
popular acquiescence and that it is willing to comply with its
international obligations.
Conditions for A Belligerent Community to Be Recognized
1. There must be an organized civil government directing the
rebel forces;
2. The rebels must occupy a substantial portion of the
territory of the state;
3. The conflict between the legitimate government and the
rebels must be serious, making the outcome uncertain; and,
4. The rebels must be willing and able to observe the laws of
war.

Distinctions between the two kinds of recognition

De Jure
• Relatively permanent;
• Vests title in the
government toits properties
abroad;
• Brings about full diplomatic
relations.
Consequences of Recognition of Belligerency
De Facto
• Provisional; Upon recognition by the parents state, the belligerent
• Does not; community is considered a separate state for purposes of the
conflict it is waging against the legitimate government. Their
relations with each other will, thenceforth and for the
• Limited to certain juridical durationof the hostilities, be governed by the laws of war, and
relations. their relations with other states will be subject to the laws of
neutrality.

Effects of Recognition of State and Governments

1. Full diplomatic relations are established except where the
government recognized is de facto;
2. The recognized state or government acquired right to sue in
the courts of the recognizing state.
It is error, however, to suppose that non-suability of the
foreign state or government is also an effect of recognition, as
this is an attribute it can claim whether or not it has been
recognized by the local state. The applicable rule is the
doctrine of state immunity. It has been held that to cite “a
foreign sovereign
in the municipal courts of another state” would be “an insult
which he is entitled to resent” and would certainly “vex the
peace of nations.”
3. The recognized state or government has a right to the
possession of the properties of its predecessor in the territory
of the recognizing state.
CHAPTER 6
THE RIGHT OF EXISTENCE AND SELF-DEFENSE
Once a state comes into being, it is invested with certain
rights described as fundamental.
Fundamental Rights of A State
1. The right to national existence and national defense;
2. The right of sovereignty and independence;
3. The right of equality;
4. The right of property and jurisdiction; and,
5. The right of legation or diplomatic intercourse.
The most important of these rights is the right of existence
and self-defense, because all other rights are supposed to
flow or be derived from it. By virtue of this right, the state
may take measures, including the use of force, as may be
necessary to counteract any danger to its existence.

4. All acts of the recognized state or government are validated
retroactively, preventing the recognizing state from passing
upon their legality in its own courts.
Recognition of Belligerency
A belligerency exists when the inhabitants of a state rise up in
arms for the purpose of overthrowing the legitimate
government.
Requisites of Right
In Art. 51 of the Charter of the United Nations, it is provided
that –
“Nothing in the present Charter shall impair the
inherent right of individual or collective self-defense if
any armed attack occurs against a member of the
United Nations, until the Security Council has taken
 the measures necessary for the maintenance of
international peace and security. xxx”
The presence of an “armed attack” to justify the exercise of
the right of the self-defense under this article suggests that
forcible measures may be taken by a state only in the face of
“necessity of self-defense, instant, overwhelming and leaving
no choice of means and no moment for deliberation.”
Regional Arrangements
Collective self-defense is recognized not only in Article 51 of
the Charter of the United Nations but also in Art. VII on
Regional Arrangements “... provided that such arrangements
or agencies and their activities are consistent with the
Purposes and Principles of the United Nations (Art. 52, Sec. 1
of the Charter of the United Nations).”
The Balance of Power
One reason for the organization of regional arrangements is
to provide for the balance of power, which Vattel described as
“an arrangement of affairs so that no state shall be in position
to have absolute mastery and dominion over others.”
The maintenance of this balance of power has in a very real
way contributed to international peace although, being an
“armed peace,” it is far from the ideal sought in the articles of
faith of the United Nations.
Aggression Defined
Definition of agression as adopted by the U.N. General
Assembly on December 14, 1974:
Article 1
Aggression – is the use of armed force by a State against the
sovereignty, territorial integrity or political independence of
another state, or in any other manner inconsistent with the
Charter of the United Nations.
Article 3
Any of the following acts qualify as an act of agression
a. The invasion or attack by the armed forces of a state of the
territory of another state;
b. bombardment by the armed forces of a state against the
territory of another state;
c. The blackade of the ports or coasts of a state by the armed
forces of another state;
d. An attack by the armed forces on land, sea or air forces, or
marine or air fleets of another state;
e. The use of armed forces of one state in the territory of
another state with the agreement of the receiving state, in
contravention of the conditions provided for in the agreement
or any extension of their presence in such territory beyond
the termination of the agreement;
f. The action of the state in allowing its territory, which it has
placed at the disposal of another state, to be used by that
other state perpetrating an act of aggression against a third
state; and,
g. The sending by or on behalf of a state of armed force
against another state of such gravity as to amount to the acts
listed above, or its substantial involvement therein.
CHAPTER 7
THE RIGHT OF INDEPENDENCE
Sovereignty is the supreme, uncontrollable power inherent in
a state by which that state is governed. It is “the supreme
power of the State to command and enforce obedience, the
power to which, legally speaking, all interests are practically
subject and all wills subordinate.
Two Aspects of Sovereignty
1. Internal Sovereignty – refers to the power of the state to
direct its domestic affairs, as when it establishes its
government, enacts laws for observance within its territory.
2. External Sovereignty – signifies the freedom of the state to
control its own foreign affairs, as when it concludes treaties,
makes war or peace, and maintains diplomatic and
commercial relations. It is often referred as independence.
Nature of Independence
Independence cannot be regarded as importing absolute
freedom. It only means freedom from control by any other
state or group of states and not freedom from restrictions
that are binding on all states forming the family of nations.
Thus, a state may not employ force or even the threat of force
in its relations with other states because this is prohibited by
Article 2 of the Charter of the United Nations. It may adhere
to the maxim of PactaSuntServanda. The principle ofmare
liberumwill prevent it from arrogating to itself the exclusive
use of the open seas to the detriment of other states. Under
the laws of neutrality, it must acquisce in the exercise of
certain belligerent rights even if this might impair its own
interests or those of its nationals.
PactaSuntServanda– the observance of a state to treaties
with other state in good faith.
Intervention
In addition, the state must abstain from intervention. Even as
it expects its independence to be respected by other states,
so too must it be prepared to respect their own
independence.
Intervention – an act by which a state interferes with the
domestic or foreign affairs of another state or states through
the employment of force or the threat of force.
The use of force is only allowed under the Charter of the
United Nations when it is exercised as an act of self-defense,
or when it is decreed by the Security Council as a preventive
or enforcement action for the maintenance of international
peace and security.
The Drago Doctrine
This doctrine was embodied in the Hague Convention of 1907
through the provision that “ the Contracting Powers agree not
to have recourse to armed force for the recovery of contract
debts claimed from the government by the government of
another country as being due to its nationals.
This rule was, however, dissipated by the Porter Resolution.
Porter Resolution – intervention was permitted if the debtor
state refused anoffer to arbitrate, prevented agreement on
the compromis, or having agreed thereto, refused to abide by
the award of the arbitrator.
CHAPTER 8
THE RIGHT OF EQUALITY
In Article 2 of the Charter of the United Nations, it is
announced that “the Organization is based on the principle of
the sovereign equality of all its Members.”
In the provision of the Montevideo Convention of 1933,
“states are juridically equal, enjoy the same rights, and have
equal capacity in their exercise.”
Essence of Equality
In international law, equality among states does not signify
parity in physical power, political influence or economic status
or prestige.
Principle of Equality – all the rights of state, regardless of
their number, must be obsreved or respected by the
international community in the same manner as rights of
other states are observed and respected.
Accordingly, all members of the United Nations have each one
vote in the General Assembly, all votes having equal weight,
and are generally eligible for positions in the various organs of
the United Nations. Every state has the right tothe protection
of its nationals, to make use of the open seas, or to acquire or
dispose territory.
Under the rule of par in parem, non habet imperium, even
the strongest statecannot assume jurisidiction over another
state, no matter how weak.
Legal Equality v. Factual Inequality
But even from the viewpoint of strictly legal rules, it is
apparent that absoluteequality among states is still a distant
and well high impossible aspiration. Underthe Charter of the
United Nations, for example, non-procedural questions
aredecided by the Security Council only with the concurrence
of the Big Five, any of which may defeat a proposal through
the exercise of the veto. This is true alsowith respect to the
ratification of any proposal to amend the Charter.
But this rule of equality itself sometime poses serious
questions of inequality.This is so because it does not take into
account the realities of international life,including the greater
stakes of the more populous states in the decision
ofquestions involving the entire community of nations. Such
decisions may affect
the interests, not of individual states as such, but of the whole
of humanity itselfwithout distinctions as to color, nationality
or creed.
CHAPTER 9
TERRITORY
Territory – the fixed portion of the surface of the earth
inhabited by the people ofthe state.
As previously observed, the territory must be big enough to
provide for the needsof the population but should not be so
extensive as to be difficult to administer ordefend from
external aggression.
Acquisition and Loss of Territory

Mode in the Acquisition of Territory
1. by discovery and occupation
2. by prescription
3. by cession
4. by subjugation and
5. by accretion
Mode of Losing Territory
1. by abandonment or dereliction
2. by cession
3. by subjugation
4. by revolution and
5. by natural causes
Discovery and Occupation
Discovery and occupation is an original mode of acquisitionby
which territory notbelonging to any state, or terra nullius, is
placed under the sovereignty of thediscovering state. The
territory need not be uninhabited provided it can
beestablished that the natives are not sufficiently civilized and
can be considered aspossessing not rights of sovereignty but
only rights of habitation.Like the open seas, outer space is res
communist and not susceptible todiscovery and occupation.
Requisites of Valid Discovery and Occupation
1. Possession, and
2. Administration
Mere possession will not suffice, as only an inchoate title of
discovery is acquiredby the claimant state pending
compliance with the second requirement, which isthe
administration of the territory. Otherwise, the title will lapse
and the territorywill become res nullius again.
• “Discovery alone, without any subsequent act, cannot at the
present time suffice to prove sovereignty over the Island of
Palmas....” (Island of Palmas Case)
• “Besides the animus occupandi, the actual and not the
nominal taking of possession is necessary condition of
occupation. This taking ofpossession consists... steps to
exercise exclusive authority there.”(Clipperton Island Case)
Dereliction
Requisites of Valid Dereliction
1. act of withdrawal, and
2. the intention to abandon
Hence, where the forces of the state are driven away from the
territory by the natives, title is not thereby necessarily
forfeited, as it may be that they intend to return with the
necessary reinforcements to suppress the resistance. If such
intention is not present, the territory itself becomes res
nullius or terranullius, becoming open once again to the
territorial ambitions of other states.
Prescription
There is as yet no rule in international law fixing the period of
possession necessary to transfer title to the territory from the
former to the subsequent sovereign.
Cession
Cession – is a method by which territory is transferred by one
state to another by voluntary agreement between them.
Cession may be in the form of sale, donation, barter or
exchange, and even by testamentary disposition.
Subjugation
Subjugation – is when, having been previously conquered or
occupied in the course of war by the enemy, it is formally
annexed to it at the end of the war.
Requisites of Valid Subjugation
1. conquest
2. annexation
Accretion
Accretion – is a mode of acquiring territory based on the
principle of accession cedatprincipali. It is accomplished
through both or natural or artificial processes.
Components of Territory
Territory of the State Consists of the Following:
1. Terrestrial Domain
2. Maritime and Fluvial Domain
3. Aerial Domain
A. The Terrestrial Domain
Terrestrial Domain – refers to the land mass which may
integrate, or dismembered, or partly bounded by water, or
consists of one whole island. It may also be composed of
several islands, like the Philippines and Indonesia, which are
known as mid-ocean archipelagoes, as distinguished from the
coastal archipelagoes like Greece.
B. The Maritime and Fluvial Domain
Maritime and Fluvial Domain – consists off the bodies of
water within the land mass and the waters adjacent to the
coasts of the state up to a specified limit.
1. Rivers
Rivers may be classified into:
• national – situated completely in the territory of one state,
• multi-national – that flow through the territories of several
states,
• international – that is navigable from the open sea and is
open to the use of vessels from all states,and
• boundary – divides the territories of riparian states.
Thalweg Doctrine – the boundary line is laid on the river, that
is, on the center, not of the river itself, but of its main
channel.
Where the boundary river changes its course by a gradual and
normal process, such as accretion or erosion, the dividing line
follows the new course; but if the deviation is violent is
abrupt, as by avulsion, the boundary line will continue to be
laid on the old bed of the river, in the absence of contrary
agreement.
As for the dividing line on a bridge across a boundary river,
the same is laid on the middle of the bridge regardless of the
location of the channel underneath, unless otherwise
provided by the riparian state.
2. Bays
Bay – is a well-marked indentation whose penetration is in
such proportion to the width of its mouth as to contain land-
locked waters and constitute more than a curvature of the
coasts.
An indentation shall not, however, be regarded as a bay
unless its area is as large as or larger than that of a semi-circle
whose diameter is a line drawn across the mouth of that
indentation.
The above rules do not apply to the so-called historic bays.
3. The Territorial Sea
Territorial Sea – described as the belt of waters adjacent to
the coasts of the state, excluding the internal waters in bays
and gulfs, over which the state claims sovereignty and
jurisdiction.
Traditionally, the breadth of the territorial sea is reckoned at
three nautical miles, or a marine league, from the low-water
mark.
However, many states have since extended their territorial
seas, so that no uniform rule can be regarded as established
at present in this regard.
4. The UN Conferences of the Law of the Sea
Three international conferences had been called so far to
formulate a new law of the sea.
The first was held in 1958 at Geneva, Switzerland, and
resulted in the adoption of the Convention on the Territorial
Sea and the Contiguous Zone, the Convention of the High
Seas, and the Convention on Fishing and the Living Resources
of the High Seas, and the Convention on the Continental
Shelf. It failed however to define the breadth of the territorial
sea. The Philippines did not ratify it because of the absence of
provisions recognizing the archipelago doctrine it was
advocating.
The second conference, which was held in 1960, also at
Geneva, likewise left unresolved the question on the breadth
of the territorial sea.
The third conference, called in 1970 by the United Nations is
still in progress.
5. The Philippine Territorial Sea
The claim of the Philippines to its territorial sea is based on
historic right or title oras it is often called the treaty limits
theory.
6. The Archipelago Doctrine
The Philippine position on the definition of its internal waters
is commonly known as the archipelago doctrine. This is
articulated in the second sentence of Article Iof the 1987
Constitution, which follows:
“The national territory comprises the Philippine archipelago,
with all theislands and waters embraced therein, and all the
other territories belonging tothe Philippines by historic right
or legal title...”
Our position is that all these islands should be considered one
integrated wholeinstead of being fragmented into separate
units each with its own territorial sea.Otherwise, the water
outside each of these territorial seas will be regarded ashigh
seas and thus be open to all foreign vessels to the prejudice of
our economyand national security.
An archipelago is a group of islands, including parts of islands,
interconnectingwaters and other natural features which are
so closely interrelated that suchislands, waters and other
natural features form an intrinsic geographical,economic, and
political entity, or which historically have been regarded as
such.

Hence, in defining the internal waters of the archipelago,
straight baselinesshould be drawn to connect appropriate
points of the outermost islandswithout departing radically
from the general direction of the coast so thatthe entire
archipelago shall be encompassed as one whole territory.
Thewaters inside these baselines shall be considered internal
and thus not subject toentry by foreign vessels without the
consent of the local state.
7. Basis of the Article I of the 1987 Constitution
Article I of the 1987 Constitution was based on R.A. 3046 as
amended by R.A.No. 5446 declaring the Philippine territorial
sea.
8. Methods of defining the Territorial Sea
Two Methods Defining the Territorial Sea
(a) Normal baseline method – the territorial sea is simply
drawn from thelow-water mark of the coast, to the breadth
claimed, following itssinuosities and curvatures but excluding
the the internal waters in baysand gulfs.
(b) Straight baseline method – straight lines are made to
connectappropriate points on the coast without departing
radically from its generaldirection.
C. The Aerial Domain
The aerial domain – the airspace above the terrestrial domain
and the maritimeand fluvial domain of the state, to an
unlimited altitude but not including the outerspace.
CHAPTER 10
JURISDICTION
Jurisdiction is the authority exercised by the state over
persons and things within or sometimes outside its territory,
subject to certain exceptions.
General Classifications of Jurisdiction
1. Personal Jurisdiction
2. Territorial Jurisdiction
Subjects of State Jurisdiction
1. its nationals
2. the terrestrial domain
3. the maritime and fluvial domain
4. the continental shelf
5. the open seas
6. the aerial domain
7. outer space
8. other territories
Personal Jurisdiction
Personal jurisdiction – is the power exercised by the state
over its nationals. It is based on the theory that a national is
entitled to the protection of his state wherever he may be and
is, therefore, bound to it by a duty of obedience and
allegiance.
• Article 15 of the Civil Code: “laws relating to family rights
and duties, or to the status, condition and legal capacity of
persons, are binding upon citizens of the Philippines, even
though living abroad.”
• Under Article 16 of the Civil Code: “intestate and
testamentary succession, both with respect to the other of
succession and to the amount of successional rights and to
the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession
is under consideration, whatever may be the nature of the
property and regardless of the country wherein said property
may be found.”
• Jurisdiction to tax our citizens, even if not residing in the
Philippines, is also provided for in our Internal Revenue Code
for income received by them “from all sources.”
Indeed, even an alien may be held subject to the laws of a
state whose national interest he has violated, and
notwithstanding that the offense was committed outside its
territory.
• Article 2 of the Revised Penal Code, for instance, punishes
any personwho, whether in or outside our territory, should
forge or counterfeit Philippine currency, utter such spurious
securities or commit any crime against our national security
or the law of the nations.
Territorial Jurisdiction
General rule: a state has jurisdiction over all persons and
property within its territory.
The jurisdiction of the nation within its own territory is
necessary, exclusive and absolute. It is susceptible of no
limitation not imposed by itself (The Schooner Exchange v
McFaddon).
Exceptions:
1. Foreign states, heads of states, diplomatic representatives,
and consuls to a certain degree;
• Foreign states and their heads are exempt because of the
sovereign equality of states and on the theory that a contrary
rule would disturb the peace of nations. Diplomats and
consuls enjoy the exemption in order that they may have full
freedom in the discharge of their official functions.
2. Foreign state property engaged in non-commercial
activities;
• By fiction of law, public vessels are regarded as extensions
of the territory of the foreign state.
3. Acts of state;
• Every sovereign state is bound to respect the independence
of every other sovereign state, and the courts of one country
will not sit in judgment on the acts of the government of
another, done within its own territory.
4. Foreign merchant vessels exercising the rights of innocent
passage or arrival under stress;
• Innocent passage – navigation through the territorial sea of
the state for the purpose of traversing that sea without
entering internal waters, or of proceeding to internal waters,
as long as it is not prejudicial to thepeace, good order or
security of the coastal state.
• Arrival under stress – entrance to another state due to lack
of provisions, unseawothiness of the vessel, inclement
weather, or other force majeure, like pursuit by pirates.
5. Foreign armies passing through or stationed in its territory
with its permission;
6. Such other persons or property over which it may, by
agreement, waive jurisdiction.
Land Jurisdiction
Everything found within the territorial domain of the state is
under its jurisdiction. Nationals and aliens, including non-
residents, are bound by its laws, and no process from a
foreign government can take effect for or against them within
the territory of the local state without its permission.
Also, as against all other states, the local state has exclusive
title to all property within its territory which it may own in its
own corporate capacity or regulate when under private
ownership through its police power for forcibly acquire
through the power of eminent domain. Such property is also
subject to its taxing power.
Maritime and Fluvial Jurisdiction
General rule: the internal waters of a state are assimilated to
the land mass and subjected to the same degree of
jurisdiction exercised over the terrestrial domain.
Civil, criminal and administrative jurisdiction is exercised by
the flag state over its public vessels wherever they may be,
provided they are not engaged in commerce.
Foreign merchant vessels docked in a local port or bay,
jurisdiction is exercised over them by the coastal state in civil
matters.
Criminal jurisdiction is determined according to either the
English rule or the French Rule.
English rule – the coastal state shall have jurisdiction over all
offenses committed on board, except only where they do not
compromise the peace of the port.
French rule – the flag state shall have jurisdiction over all
offenses committed on board such vessel, except only where
they compromise the peace of the port.
The Contiguous Zone
Contiguous Zone – a protective jurisdiction extending beyond
the territorial sea, but not more than 12 miles from the coast
of the state. It is necessary to:
1. prevent infringement of its customs, fiscal, immigration or
sanitary regulations within its territory or territorial sea; and,
2. punish infringement of the above regulations within its
territory or territorial sea.
The Continental Shelf
Continental Shelf – refers to a) the seabed and subsoil of the
submarine areas adjacent to the coast but outside the area of
the territorial sea, to a depth of 200 meters, or beyond that
limit, to where the depth of superjacent waters admits the of
the exploitation of the natural resources of the said areas;
and, b) to the seabed and subsoil of similar areas adjacent to
the coasts of islands.
The coastal state has the sovereign right to explore the
continental shelf and to exploit its natural resources and for
this purpose it may erect on it such installations and
equipment as may be necessary.
But this right shall not affect the legal nature of the
superjacent waters as open seas or of the airspace above such
waters and their use as such by other states shall not be
impaired or disturbed.
The Patrimonial Sea
The Exclusive Economic Zone (EEZ) or Patrimonial Sea –
extends 200nautical miles from the coast or the baselines. All
living and non-living resourcesfound therein are claimed to
belong exclusively to the coastal state.
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.

However, it has not yet been recognized as a rule of
international law.
The Open Seas
General rule: The open seas or the high seas are res
communisand available to the use of all states for purposes of
navigation, flying over them, laying submarine cables or
fishing.
Exceptions:
1. Over its vessels. The flag state has jurisdiction over its
public vessels at all times, whether they be in its own
territory, in the territory of other states or on the open seas.
Merchant vessels, on the other hand, are under its jurisdiction
when they are within its territory, when jurisdiction is waived
or cannot be exercised by the territorial sovereign, or when
such vessels are on the open seas.
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.

2. Over pirates. Pirates are enemies of all mankind and may

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

3. In the exercise of the right of visit and search. Under the

laws of neutrality, the public vessels or aircraft of a belligerent
state may visit and search any neutral merchant vessel on the
open seas and capture it or its cargo if it is found or suspected
to be engaged or to have engaged in activities favorable to
the other belligerent.

4. Under the doctrine of hot pursuit. If an offense is

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

There are no traditional rules in international law regarding

the rights of the subjacent state to its aerial domain.