CODES AND NOTES ON CONSTITUTIONAL LAW II

NOTES AND CASES ON CONSTITUTIONAL LAW II

I. THE INHERENT/ FUNDAMENTAL POWERS OF THE STATE
1. Police Power
2. Power of Eminent Domain
3. Power of Taxation
They are inherent powers because they belong to the very essence of government
and without them no government can exist.
Similarities, Distinctions, and Limitation
Similarities:
They are inherent in the State and may be exercised by it without need of express
constitutional grant.
They are necessary and indispensable The State cannot continue or be effective
unless it is able to
exercise them.
They are methods by which the State interferes with private rights.
They all presuppose an equivalent compensation for the private rights interfered
with.
They are exercised primarily by the legislature.
Differences:
Police Power

Eminent Domain

Taxation

As to
regulation/extent
of power
As to who may
exercise

regulates both
liberty and
property
only the
government

regulates property
rights only

Regulates property
rights only
only the
government

As to the property
taken

destroyed because
it is
noxious or
intended for
noxious purpose
intangible altruistic
feeling that the
person
has contributed to
the
general welfare

government and
some private
entities
-wholesome
-taken for a public
use or purpose

full and fair

equivalent of the
property
expropriated

protection and
public
improvements for
the taxes paid

As to
Compensation

-wholesome
-taken for a public
use or purpose

Limitations:
(a) May not be exercised arbitrarily to the prejudice of the Bill of Rights.

(b) Subject at all times to the limitations and requirements of the Constitution
and may in proper cases be annulled by the courts, i.e. when there is a grave
abuse of discretion.
A. POLICE POWER
Police Power is an inherent power of the State to promote the welfare of society
by restraining and regulating the use of liberty and property.

Justification of existence:
Salus populi est suprema lex the welfare of the people is the supreme law;
Sic utere tuo ut alienum non laedas a person must use his own property so
as not to injure another
Scope:
(a) cannot be bargained away through the medium of a treaty or contract (Stone v
Mississippi)
(b) may use taxing power as its implement (Tio vs Videogram Regulatory Board)
(c) may use eminent domain as its implement (Assoc. of Small Landowners vs Sec.
of Agrarian Reform)
(d) could be given retroactive effect and may reasonably impair vested rights or
contracts (police power prevails over contract)
(e) dynamic, not static, and must move with the moving society it is supposed to
regulate
Who may exercise Police Power?
(a) the Legislature (inherent)
(b) President (by delegation)
(c) administrative boards (by delegation)
(d) lawmaking bodies on all municipal levels, including barangay (by delegation)
(e) Municipal governments / LGU's (conferred by statute general welfare clause of
RA 7160)
Not being a political subdivision but merely an executive authority it has no police
power. (MMDA v. Bel-Air Village Assoc.)
Tests (Limitations):
(a) Lawful subject interests of the public generally, as distinguished from those
of a particular class, require the exercise of police power
(b) Lawful means the means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals
Additional limitations (when exercised by delegate) [Nachura Reviewer]:
express grant by law (e.g. RA 7160)

 within territorial limits (for LGU's)

must not be contrary to law (City Government of Quezon City vs Ericta)
for municipal ordinances 1. must not contravene the Constitution or any statute
2. must not be unfair and oppressive
3. must not be partial and discriminatory
4. must not prohibit, but may regulate, trade
5. must not be unreasonable
6. must be general in application and consistent with public policy
In Ermita-Malate Hotel and Motel Operators Association, Inc. v. Mayor of
Manila, police power has been characterized as the most essential, insistent and
least limitable of powers extending as it does to all great public needs.
[T}he mere fact that some individuals in the community may be deprived of
their business or a particular mode of earning a living cannot prevent the exercise
of police power. .. [P]ersons licensed to pursue occupations which may in the public
need and interest be affected by the exercise of the police power embark in these
occupations subject to the disadvantages which may result from the exercise of that
power.
Government can take away a license and increase the cost of license fees even to
prohibitive levels, if public interest dictates so, without any constitutional violations.
Licenses for regulating non-useful occupation are incidental to the exercise of police
power and the right to exact fees is may be implied from that power to regulate. In
setting the fees, municipal corporations are given wider discretion in this class of
licenses (than for licenses issued to regular business). Courts have generally upheld
these because of the desirability of imposing restraints on individuals who engage
in these unuseful enterprises.
In Ynot v. IAC, the Court here ruled that the ban on transportation of carabao
under the assailed ordinance and their outright confiscation and disposal without
court hearing is a violation of due process hence it is an invalid exercise of police
power.
The court adopted the measures laid down in the Toribio case.
Protection general welfare is a function of police power which both restrains and is
restrained by due process, which requires notice and hearing.
Case emphasized the need to have a lawful method to follow due process
requirement .
Reasons why ordinance is invalid are:
No reasonable connection between means employed (absolute ban on
movement of carabeef) and purpose sought to be achieved (conservation of
carabao for general welfare)
Unduly oppressive since petition not given due process or opportunity to be
heard in proper court

B. EMINENT DOMAIN
Eminent Domain is the use of the government of its coercive authority, upon just
compensation, to forcibly acquire the needed property in order to devote the same
to public use. Eminent domain is also known as expropriation, or condemnation.
Who may Exercise?
1. The Congress (inherent)
2. President
3. various local legislative bodies
4. certain public corporations (e.g. National Housing Authority)
5. Quasi-public corporations (e.g. PLDT)
Eminent Domain Distinguished from Destruction from Necessity
Eminent Domain
Destruction from Necessity
public right
arises from the laws of society and is
vested in the state or grantee, acting
under the right and power of the state or
benefit of the state

private right vested in every individual

with which the right of state or state
necessity has nothing
to do
comes under the right of necessity, of
self-preservation
arises under the laws of society or
society itself
cannot require the conversion of the
property taken to public use, nor is there
any need for the payment of just
compensation

The Regional Trial Court (RTC) has the jurisdiction over a complaint for eminent
domain.
Requisites of Eminent Domain:
1. Necessity of exercise
2. Private property
3. Taking
4. Public use
5. Just compensation
1. Necessity of Exercise
genuine necessity, and
must be of public character
When exercised by legislature political question
When exercised by a delegate justiciable question
determine the: (a) adequacy of compensation; (b) necessity of
taking; and (c) public
use character

2. Private Property
General Rule: anything that can come under the dominion of man is subject to
expropriation
Exceptions: money and chose in action (personal right not reduced into
possession, i.e. the right to
bring an action to recover debt, money or thing)
Private property already devoted to public use cannot be expropriated by a
delegate acting under a general grant of authority (City of Manila vs Chinese
Community)
3. Taking
Requisites (Republic vs Castellvi):
(a) expropriator must enter a private property
(b) entry must be for more than a momentary period
(c) entry must be under the warrant of legal authority
(d) entry is for public use
(e) the owner is deprived of enjoying his property
if taking is under police power, it is not compensable
Taking Under Eminent Domain vs Taking in Police Power :
Police Power
Eminent Domain
the prejudice suffered by the individual
property owner is shared in common
with the rest of the community

the individual suffers more than his

aliquot part of the damages, i.e. a
special injury above that
sustained by the rest of the community

In Amigable v. Cuenca, where there is taking in the constitutional sense, the

property owner need not file a claim for just compensation with the Commission of
Audit; he may go directly to the court to demand payment. Arbitrary action of the
government shall be deemed a waiver of its immunity from suit.
In City Government v. Ericta, an ordinance of Quezon City, under the guise of
exercising police power, prescribed that at least 6% of the totalarea of memorial
parks must be developed and set aside for the burial of paupers. The Court held
that such ordinance is not an exercise of police power but the taking of private
property for public use. Hence, to satisfy the Constitution, there must be
compensation.
4. Public Use
Public use is whatever may be beneficially employed for the general welfare,
including both direct or indirect benefit or advantage to the public

 In Heirs of Ardona v. Reyes, the Court held that the Constitution understand
public use in a broad sense as meaning public welfare. That includes development
of tourism.
5. Just Compensation
Just compensation is fair and full equivalent payment for the loss sustained,
which is the measure of the indemnity, not whatever gain would accrue to the
expropriating agency. It is not market value per se. (Epza v. Dulay)
Where only part of the property is expropriated: entitlement to
consequential damages, if any
+ consequential benefits must be deducted from the total compensation
provided consequential
benefits does not exceed consequential damages
Payment of the correct amount + Payment within a reasonable time
Form of Compensation: Money (However, in Assoc. of Small Landowners
vs Sec. of Agrarian Reform, payment is allowed to be made partly in bonds
because it deals with a revolutionary kind of expropriation).
Transfer of Title: payment of just compensation before title is transferred.
Reckoning point of market value of property: either as of the date of
taking or filing of the complaint, whichever comes first
Entitlement of interest:
General Rule: when there is delay, there must be interest by way of
damages (Art. 2209, CC)
Exception: when waived by not claiming the interest
Payment of Taxes : taxes paid from the time of the taking until the transfer of
the title, during which the owner did not enjoy any beneficial use of the property,
are reimbursable by the expropriator.

Right of the landowner in case of non-payment:

General Rule: landowner is not entitled to recover possession of the property,
but only to demand payment
Exception: when the government failed to pay just compensation within 5 years
from the finality of judgment in expropriation proceedings, there is a right to recover
property
In De Knecht v. Bautista, the court ruled that the expropriation proceeding
against the property of petitioner was arbitrary and cannot receive judicial approval.
There was another area where the expansion of EDSA can be undertaken, which will
cost government less, affect lesser homeowners, etc.

 But in Republic vs. Knecht, the same property was ordered expropriated.
Apparently, BP 340, which called for the taking of the property, was enacted after
the 1st De Knecht case. De Knecht argued that there was already a law of the case,
which should not be disturbed.
Court responded that while it is true that there was a law of the case, it is equally
true that there is constitutional grant given to the State to take private property
upon payment of just compensation. Such expropriation proceedings may be
undertaken by the [State] not only by voluntary negotiation with landowners but
also by taking appropriate court action or by legislation.
The prior court decision is no obstacle for the legislature to make its own
assessment of the circumstances that prevailed after the decision as well as
supervening events and reaching a conclusion as to the propriety of undertaking
the appropriation of the De Knecht property.
In the case Republic v. PLDT, the Court ordered the PLDT to allow the
reconnection of telephone lines of the Republic.
No cogent reason appears why Eminent Domain may be availed of to
impose only a burden upon the owner of condemned property without loss of
title or possession for public use subject to just compensation
Case highlights that even services may be subjected to eminent domain
In City of Manila v. Chinese Community of Manila, the Court said that [T]he
very foundation of the right to exercise eminent domain is a genuine necessity and
that necessity must be of public character.
In Epza v. Dulay, P.D. Nos. 76, 464, 794, and 1533 prescribed a formula for
arriving at just compensation in expropriation proceedings , dispense with the need
to appoint commissioners to determine just compensation. The Court held that
those decrees are unconstitutional and void for they constitute impermissible
encroachment on judicial prerogatives.
In Republic v. CA, the government argued that the nullification should only have
prospective effect. The Court agreed. Thus under the operative fact doctrine, the
effect of the invalidated law was allowed to affect transactions completed before
the declaration of nullity.
C. POWER OF TAXATION
Power of Taxation is a method by which contributions are exacted from persons
and property for the support of government and for all public needs.
Obligation to pay taxes is a duty
Taxes vs Licenses
Tax
to raise revenues

License
for regulatory purpose only
justified under police power

 amount of fees required is usually

limited to the
cost of regulation
Scope
all income earned in the taxing state, whether by citizens or aliens, and all
immovable and tangible personal properties found in its territory, as well as tangible
personal property owned by persons domiciled therein
Power to Tax Includes Power to Destroy
(1) when used validly as an implement of the police power in discouraging and in
effect ultimately prohibiting certain things or enterprises inimical to public welfare
Power to Tax Does Not Include Power to Destroy
where the tax is used solely for the purpose of raising revenues
Who May Exercise
1. Legislature / Congress (inherent)
2. President (by delegation / tariff powers [Sec. 28 (2), Art. VI, Consti])
3. local legislative bodies (conferred by direct authority [Sec. 5, Art. X, Consti])
Limitations of Taxation:
1. Due Process of Law
2. Equal Protection
3. Public Purpose
1. Due Process
Substantive : tax should not be confiscatory except when used as an implement
of police power
Procedural : due process does not require previous notice and hearing before a
law prescribing specific taxes on specific articles may be enacted. However, where
the tax to be collected is to be based on the value of the taxable property, the
taxpayer is entitled to be notified of the assessment proceedings and to be heard
therein on the correct valuation of the property.
2. Equal Protection
embodied in Sec. 28 (1), Art. VI, 1987 Constitution (The rule of taxation shall be
uniform and equitable. The Congress shall evolve a progressive system of taxation.)
Uniformity persons or things belonging to the same class shall be taxed at the
same rate
Requisites (Tan vs Del Rosario):
(a) standards that are used are substantial and not arbitrary
(b) categorization is germane to achieve the legislative purpose
(c) the law applies, all things being equal, to both present and future
conditions
(d) classification applies equally well to all those belonging to the same
class
Equitable taxation based on the capacity to pay

 Equality in taxation tax shall be strictly proportional to the relative value of the
property
Progressive system of taxation the rate increases as the tax base increases
3. Public Purpose
whatever may be beneficially employed for the general welfare
Double Taxation / Direct Duplicate Taxation
when additional taxes are laid on the same subject by the same taxing
jurisdiction during the same taxing period and for the same purpose.
despite the lack of specific prohibition, double taxation will not be allowed if
it results in a violation of the equal protection clause.
Tax Exemptions may either be:
constitutional
Art. Vi, Sec. 28 (3) : when lands, buildings and improvements are
actually, directly and exclusively for religious, charitable or educational
purposes entitled to exemption
statutory- discretion of legislature
II. CIVIL AND POLITICAL RIGHTS
Bill of Rights set of prescriptions setting forth the fundamental civil and political
rights of the individual, and imposing limitations on the powers of the government
as a means of securing the enjoyment of those rights.
Significance of the Bill of Rights
Government is powerful. When unlimited, it becomes tyrannical. The Bill of
Rights is a guarantee that there are certain areas of a person's life, liberty, and
property which governmental power may not touch.
Bill of Rights are generally self-implementing.
Classification of Rights
1. Political Rights granted by law to members of community in relation to their
direct or indirect participation in the establishment or administration of the
government;
2. Civil Rights rights which municipal law will enforce at the instance of private
individuals for the purpose of securing them the enjoyment of their means of
happiness;
3. Social and Economic Rights; and,

4. Human Rights.
A. DUE PROCESS
Section 1, Art. III. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.
no precise definition because it might prove constricting and prevent the judiciary
from adjusting it to the circumstances of particular cases
responsiveness to the supremacy of reason, obedience to the dictates of justice
embodiment of sporting idea on fair play
guaranty against any arbitrariness on the part of the government
Protection of Person
Covers Natural (citizen and alien) and Artificial Persons. As to the latter, with
respect only to property because its life and liberty are derived from and subject to
control of legislature
Deprivation (in Sec. 1, Art. III)
connotes denial of right to life, liberty or property
not unconstitutional. what is prohibited is deprivation without due process of law.
When the State acts to interfere with life, liberty, or property, the presumption is
that the action is valid.
1. Life
It is not just a protection of the right to be alive or to the security of one's limb
against physical harm. The right to life is the right to a good life... a life of dignity
and... a decent standard of living.
2. Liberty
(1) freedom to do right and never wrong (Mabini)
(2) right to be free from arbitrary personal restraint or servitude
3. Property
anything that can come under the right of ownership and be the subject of
contract
all things within the commerce of man
However, one cannot have a vested right to a public office as this is not regarded
as property. If created by statue, it may be abolished by the legislature at any time.
Mere privileges are not property rights and are therefore revocable at will
Aspects of Due Process
1. Substantive Due Process
2. Procedural Due Process
As a substantive requirement, it is a prohibition of arbitrary laws.
As a procedural requirement, it relates chiefly to the mode of procedure which
government agencies must follow in the enforcement and application of laws. It is a
guarantee of procedural fairness.

Substantive Due Process

Substantive due process requires intrinsic validity of the law in interfering with
the rights of the person to his life, liberty or property
Requisites:
(a) Lawful Subject
(b) Lawful Means
Procedural Due Process
Procedural due process is the restriction on actions of judicial and quasi-judicial
agencies of government.
1. Judicial Due Process
Requisites:
(a) Impartial and Competent Court
(b) Jurisdiction lawfully acquired over the person of the defendant and/or property
(c) Hearing
not necessarily trial-type hearing; submission of position papers is enough
right of a party to cross-examine the witness against him in a civil case is an
indispensable part of due process
the filing of a motion for reconsideration cures the defect of absence of a
hearing
Cases in which notice and hearing may be dispensed with without violating
due process:
abatement of nuisance per se
preventive suspension of a civil servant facing administrative
charges
cancellation of passport of a person sought for the commission of a
crime
statutory presumptions
(d) Judgment rendered upon lawful hearing (Banco Espanol Filipino v. Palanca)
2. Administrative Due Process
Requisites:
(a) Right to a hearing
(b) Tribunal must consider the evidence presented
(c) Decision must have something to support itself
(d) Evidence must be Substantial
(e) Decision must be rendered on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected
(f) Tribunal, body, or any of its judges must act on its or his own independent
consideration of the facts and law of the controversy

(g) Decision is rendered in such a manner that the parties to the proceeding can
know the various issues involved, and the reason for the decision rendered
In administrative proceedings, the quantum of proof required is only substantial
evidence, such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.
The law is vague when it lacks comprehensible standards that men of common
intelligence must necessarily guess as to its meaning and differ as to its application.
It is repugnant to the Constitution in two respects:
it violates due process for failure to accord persons fair notice of conduct to
avoid; and,
it leaves law enforcers unbridled discretion in carrying out its provisions
and becomes arbitrary flexing of the Government muscle.
In Estrada vs. Sandiganbayan, it was held that there was no violation of due
process because the nature of the charges against the petitioner is not uncertain
and void merely because general terms are used or because it employed terms that
were not defined. The Anti-Plunder law does not violate due process since it defines
the act which it purports to punish, giving the accused fair warning of the charges
against him, and can effectively interpose a defense against on his behalf.
A Connecticut statute making it a crime to use any drug or article to prevent
conception violates the right of marital privacy which is within the penumbra of
specific guarantees of the Bill of Rights.
Although the Bill of Rights does not mention privacy the Court ruled that
that the right was to be found in the "penumbras" of other constitutional
protections. The First Amendment has a penumbra where privacy is
penumbra where privacy is protected from governmental intrusion.
In Lochner v. New York, Lochner was charged with violation of the labor laws of
New York for wrongfully and unlawfully permitting an employee to work more than
60 hours in one week. The statute allegedly violated mandates that no employee
shall contract or agree to work more than 10 hours per day.
Issue: Whether the statute is unconstitutional.
Ruling: Yes.
The statute is unconstitutional. The statute interferes with the liberty of a person
and the right of free contract between employer and employee by determining the
hours of labor in the occupation of a baker without reasonable ground for doing so.
The general right to make a contract in relation to ones business is a liberty
protected by the 14th amendment.
The state may interfere with and regulate both property and liberty rights to
prevent the individual from making certain kinds of contracts in its exercise of police
power which relates to safety, health, morals and general welfare of the society. In
this instance, the 14th amendment cannot interfere.

The trade of a baker is not an alarmingly unhealthy one that would warrant the
states interference with rights to labor and contract.
Doctrine: The rule must have a more direct relation, as means to an end, and the
end itself must be appropriate and legitimate, before an act can be held to be valid
which interferes with the general right of an individual to be free in his person and
in his power to contract in relation to his own labor.
Our cases include Court of Industrial Relations (Ang Tibay vs. CIR) as an
administrative court which exercises judicial and quasi-judicial functions in the
determination of disputes between employers and employees. National
Telecommunications Company (PHILCOMSAT vs. Alcuaz), National Labor Relations
Commission or NLRC (DBP vs. NLRC) and school tribunals (Ateneo vs. CA-Board of
Discipline, Alcuaz vs. PSBA, Non vs. Judge Dames, Tinker vs. Des Moines
Community School District) also are clothed with quasi-judicial function. It is a
question of whether the body or institution has a judicial or quasi-judicial function
that makes it bound by the due process clause. (Judicial function is synonymous to
judicial power which is the authority to settle justiciable controversies or disputes
involving rights that are legally enforceable and demandable or the redress of
wrongs for violations of such rights. It is a determination of what the law is and what
the legal rights of the parties are with respect to a matter in controversy).
In Ang Tibay vs. CIR, the Court laid down cardinal requirements in administrative
proceedings which essentially exercise a judicial or quasijudicial function. These are:
(1) the right to a hearing, which includes the right to present ones case and submit
evidence in support thereof
(2) The tribunal must consider the evidence presented
(3) The decision must have something to support itself
(4) The evidence must be substantial. Substantial evidence means such a
reasonable evidence as a reasonable mind might accept as adequate to support a
conclusion
(5) The decision must be based on the evidence presented at the hearting or at
least contained in the record and disclosed to the parties affected
(6) The tribunal or body of any of its judges must act on its own independent
consideration of the law and facts of the controversy and not simply accept the
views of a subordinate
(7) The Board or body should, in all controversial questions, render its decision in
such manner that the parties to the proceeding can know the various issues
involved and the reason for the decision rendered.
B. EQUAL PROTECTION
Section 1, Art. III. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.
The Equality Protection Clause is a specific constitutional guarantee of the Equality
of the Person. The equality it guarantees is legal equality or, as it is usually put, the
equality of all persons before the law.
embraced in the concept of due process

 embodied in a separate clause to provide for a more specific guaranty against

undue favoritism or hostility from the government
Due Process Clause attacks arbitrariness in general
Equal Protection Clause attacks unwarranted partiality or prejudice
Substantive Equality all persons or things similarly situated should be treated
alike, both as to rights conferred and responsibilities imposed.
Equality in enforcement of the law law be enforced and applied equally
Requisites of Valid Classification:
(a) it must be based on substantial distinctions
(b) it must be germane to the purposes of the law
(c) it must not be limited to existing conditions only
must be enforced as long as the problem sought to be corrected exists
(d) it must apply equally well to all members of the class
both as to rights conferred and obligations imposed
In De Guzman v. Comelec, petitioners theorize that Sec. 44 of RA 8189 is
violative of the equal protection clause because it singles out the City and Municipal
Election Officers of the COMELEC as prohibited from holding office in the same city
or municipality for more than four years. The Court held that the law is valid. The
singling out of election officers in order to ensure the impartiality of election
officials by preventing them from developing familiarity with the people of their
place of assignment.
In Ormoc Sugar Central v. Ormoc City, Ormoc City imposes a tax on Ormoc
Sugar Central by name. Ormos Sugar Central is the only sugar central in Ormoc City.
The Court held that such ordinance is not valid for it would be discriminatoory
against the Ormoc Sugar Central which alone comes under the ordinance.
C. SEARCH AND SEIZURE
Section 2, Art. III. The right of the people to be secure in their
persons,houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or
things to be seized.
Section 2, Art. III deals with tangibles; embodies the castle doctrine (a
man's house is his castle; a citizen enjoys the right against official intrusion and is
master of all the surveys within the domain and privacy of his own home.)

 This provision applies as a restraint directed only against the government and its
agencies tasked with enforcement of the law. It does not protect citizens from
unreasonable searches and seizures perpetrated by private individuals.
Section 3, Art. III. (1)The privacy of communication and correspondence
shall be inviolable except upon lawful order of the court, or when public
safety or order requires otherwise, as prescribed by law. (2) Any evidence
obtained in violation of this or the preceding section shall be inadmissible
for any purpose in any proceeding.
Section 3 (1), Art. III deals with intangibles
Section 3 (2), Art. III Exclusionary Rule (which embodies the Doctrine of the
Fruit of the Poisonous Tree)
Exclusionary Rule evidence obtained in violation of Sec. 2, Art.III, shall be
inadmissible for any purpose in any proceeding (Fruit of Poisonous Tree Doctrine).
(Stonehill v. Diokno)
available to natural and artificial persons, but the latter's books of accounts may
be required to open for examination by the State in the exercise of police power or
power of taxation The right is personal (Stonehill vs Diokno)
General Rule: only a judge may issue a warrant.
Exception: orders of arrest may be issues by administrative authorities but only for
the purpose of carrying out a final finding of a violation of a law
Valid Warrantless Searches
[NOTE: each of these requires probable cause, except stop and frisk]
1. searches incidental to lawful arrest (rule 126, Rules of Court) for dangerous
weapons or anything that may have been used or constitute in the commission of
an offense
Requisites:
1. the item to be searched was within the arrestee's custody or area of
immediate control
2. the search was contemporaneous with the arrest
2. searches of moving vehicles
In Aniag v. Comelec, twenty meters away from the gate of the Batasan, a truck
was stopped and searched. The motorists had not given any evidence of suspicious
behaviour nor had the searching officers received any confidential information
about the car. The Court held that the search was not justifiable as a warrantless
arrest of a moving vehicle as there was no probable cause.

3. searches of prohibited articles in plain view

Requisites:
1. prior valid intrusion to a place
2. evidence was inadvertently discovered by the police who has the right to
be there
3. evidence is immediately apparent
4. there is no further search
4. enforcement of customs law
5. consented searches
6. stop and frisk (limited protective search of outer clothing for weapons)
In Terry v. Ohio, the stop-and-frisk rule is stated thus: (W)here a police officer
observes unusual conduct which leads him reasonably to conclude in the light of his
experience that criminal activity may be afoot and that the person with whom he is
dealing may be armed and presently dangerous, where in the course of
investigation of this behavior he identifies himself as a policeman and makes
reasonable inquiries, and where nothing in the initial stages of the encounter serves
to dispel his reasonable fear for his own or others' safety, he is entitled for the
protection of himself and others in the area to conduct a carefully limited search of
the outer clothing of such persons in an attempt to discover weapons which might
be used to assault him.
Stop-and-frisk rule serves a two-fold interest:
(1) the general interest of effective crime prevention and detection;
(2) the more pressing interest of safety and self-preservation. (Malacat)
7. routine searches at borders and ports of entry
8. searches of businesses in the exercise of visitorial powers to enforce
police regulations
Valid Warrantless Arrest
1. in flagrante delicto
2. hot pursuit
3. the offender escaped from the penal establishment
Requisites of a valid warrant
Arrest Warrant
1. Probable Cause
must refer to one (1)
specific offense

Such facts and

circumstances which
would lead a reasonably
prudent man to believe
that an
offense has been

Search Warrant
Such facts and
circumstances which
would lead a reasonably
prudent man to believe
that an
offense has been

committed and the person

sought to be arrested had
committed it

2. Personal
determination of
probable cause by the
judge

The judge personally

determines the existence
of probable cause; it is not
necessary that he should
personally examine the
complainant and his
witnesses (Soliven vs
Makasiar)
Procedure:
(1) personally evaluate
the fiscal's report, or
(2) if [1] is insufficient,
disregard it and require
the submission of
supporting affidavits of
witnesses
Preliminary inquiry
(task of
the judge) determination
of
probable cause for the
issuance of warrant of
arrest
Preliminary
investigation proper
(task of the prosecutor)
ascertainment whether
the offender should be
held for trial or be

3. After examination
under oath or
affirmation of the
complainant and the
witnesses he may
produce
4.Particularity of

committed
and the objects sought in
the connection of the
offense are in
the place sought to be
searched
The judge must personally
examine in the form of
searching questions and
answers...
in writing and under
oath...
the complainants and his
witnesses...
on facts personally known
to
them...
and attach to the record
their
sworn statements and
affidavits.
(Silva vs Presiding Judge)
released

Not merely routinary but

must
be probing and exhaustive

Not merely routinary but

must
be probing and exhaustive

General Rule: it must

General Rule: when the

description

contain the name/s of the

persons to be arrested
Exception: if there is
some descriptio personae
which will enable the
officer to identify the
accused

description therein is as
specific
as the circumstances will
ordinarily allow.
Exception: when no
other more
accurate and detailed
description could have
been
given.

In Valmonte v. Gen. De Villa, the Court held that not all searches and seizures
are prohibited. Those which are reasonable are not forbidden. A reasonable search
is not to be determined by any fixed formula but is to be resolved according to the
facts of the case. Checkpoints are not illegal per se... Routine inspection and few
questions do not constitute unreasonable searches. If the inspection becomes more
thorough to the extent of becoming a search, this can be done when there is
deemed to be probable cause. In the latter situation, it is justifiable as a warrantless
search of a moving vehicle.
Probable Cause facts and circumstances antecedent to the issuance of a warrant
that are in themselves sufficient to induce a cautious man to rely upon them.
In Corro v. Lising, the Affidavit of Col. Castillo stated that in several issues of the
Philippine Times:... we found that the said publication in fact foments distrust and
hatred against the government of the Philippines. The Court held that the affidavit
does not establish probable cause, and is nothing but conclusions of law.
In Burgos v. Chief of Staff, a search warrant for the newspaper WE Forum is
issued on the basis of a broad statement of the military that Burgos, Jr. is in
possession of printing equipment and other paraphernalia... used as means of
committing the offense of subversion. The Court held that such allegation is not
sufficient to establish probable cause. It is a mere conclusion of law unsupported by
particulars.
The Court also held that the search warrant description has the sweeping tenor
making the document a general warrant. The search warrant particularly states:all
printing equipment, typewriters... of the WE Forum newspaper and any other
documents... It is not required that the property to be searched should be owned
by the person against whom the search warrant is directed. It is sufficient that the
property is under the control or possession of the person sought to be searched.
In Soliven v. Judge Makasiar, the Court clarified the meaning of personally in
the search and seizure clause. It stated that in arriving at a conclusion as to the
existence of existence of probable cause, what is required is personal determination
and not personal examination.

 In Lim v. Felix, the Court held that the judge in issuing a warrant of arrest cannot
rely solely on the certification or recommendation of a prosecutor that probable
cause exists. The judge must look at the report, the affidavits, the transcripts of
stenographic notes (if any), and all other supporting documents behind the
Prosecutor's certification.
In Stonehill v. Diokno, the Court held that the following description is insufficient
for it amounts to a general warrant authorizing the officer to pick up anything he
pleases: Book of accounts, financial records, vouchers...and other documents
showing all business transactions.... The Court further held that the objection to an
unlawful search or seizure and to evidence obtained thereby is purely personal and
cannot be availed by third parties.
D. MIRANDA RIGHTS
Section 12, Art. III.
1. Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and in the presence
of
counsel.
2. No torture, force, violence, threat, intimidation, or any other means
which vitiate the free will shall be used against him. Secret detention
places, solitary, incommunicado, or other similar forms of detention are
prohibited.
3. Any confession or admission obtained in violation of this or Section 17
hereof shall be inadmissible in evidence against him.
4. The law shall provide for penal and civil sanctions for violations of this
Section as well as compensation to the rehabilitation of victims of torture
or similar practices, and their families.
called the Miranda Doctrine (Miranda vs Arizona)
Miranda Doctrine prior to any questioning during custodial investigation, the
person must be warned that he has a right to remain silent, that any statement he
gives may be used as evidence against him, and that he has the right to the
presence of an attorney, either retained or appointed. The defendant may waive
effectuation of these rights, provided the waiver is made voluntarily, knowingly, and
intelligently.
Purpose of the Doctrine
In Miranda v Arizona, the US Supreme Court established rules to protect a
criminal defendant's privilege against self-incrimination from the
pressures arising during custodial investigation by the police. Thus, to
provide practical safeguards for the practical reinforcement for the right against
compulsory self-incrimination, the Court held that the prosecution may not use
statements, whether exculpatory or inculpatory, stemming from custodial

interrogation of the defendant unless it demonstrates the use of procedural

safeguards effective to secure the privilege against self-incrimination.
Requisites of the Miranda Doctrine
(1) any person under custodial investigation has the right to remain silent;
(2) anything he says can and will be used against him in a court of law;
(3) he has the right to talk to an attorney before being questioned and to have his
counsel present when being questioned; and
(4) if he cannot afford an attorney, one will be provided before any questioning if he
so desires.
Custodial investigation defined
Any questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any significant
way.
Begins as soon as the investigation is no longer a general inquiry unto an unsolved
crime, and direction is then aimed upon a particular suspect who has been taken
into custody and to whom the police would then direct interrogatory questions
which tend to elicit incriminating statements.
Shall include the practice of issuing an invitation to a person who is investigated in
connection with an offense he is suspected to have committed, without prejudice to
the liability of the inviting officer for any violation of law.
Extrajudicial confession is Admissible when:
(a) Voluntary
(b)With assistance of counsel
(c) In writing, and
(d) Express
Rights Under Custodial Investigation
(a) To be informed of right to remain silent and to counsel
Carries the correlative obligation on the part of the investigator to explain
and contemplates effective communication which results in the subject
understanding what is conveyed. (People v. Agustin)
(b) To be reminded that if he waives his right to remain silent, anything he says can
and will be used against him
(c) To remain silent
(d) To have competent and independent counsel preferably of own choice
(e) To be provided with counsel if the person cannot afford the services of one
(f) No torture, force, violence, threat, intimidation or any other means which vitiate
the free will shall be used against him
(g) Secret detention places, solitary, incommunicado, or other similar forms of
detention are prohibited
(h) Confessions or admissions obtained in violation of these rights are inadmissible
as evidence (exclusionary rule)
Rights That May Be Waived
[waiver must be in writing and in the presence of counsel]

(a) Right to remain silent

(b) Right to Counsel
Rights That Cannot Be Waived
(a) Right to be informed of his right to remain silent and to counsel
(b) Right to counsel when making the waiver of the right to remain silent or to
counsel
Right to counsel de parte is not unlimited. Accused cannot repeatedly ask
for postponement. He must be provided with counsel de oficio.
RA 7309: victims of unjust imprisonment may file their claims with the Board
of Claims under DOJ
Res Gestae: The declaration of the accused acknowledging guilt made to the
police desk officer after the crime was committed may be given in evidence against
him by the police officer to whom the admission was made, as part of the res
gestae.
In People v. Galit, rights under custodial investigation may be waived. The
Constitution says; These rights cannot be waived except in writing and in the
presence of counsel. In localities where there are no lawyers, the State must bring
the individual to a place where there is one.
Termination of rights under custodial investigation: When Charges are filed
against the accused (in such case, Sections 14 and 17 come into play).
In Gutang v. People, the Court held that urine sample is admissible. What the
Constitution prohibits is the use of physical or moral compulsion to extort
communication from the accused, but not an inclusion of his body in evidence,
when it may be material. In fact, an accused may be validly compelled to be
photographed or measured, or his garments or shoes removed or replaced, or to
move his body to enablke the foregoing things to be done, without running afould of
the proscription against testimonial compulsion.
E. RIGHT TO BAIL
Section 13, Art. III. All persons, except those charged with offenses
punishable by reclusion perpetua when evidence of guilt is strong, shall,
before conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.
Bail is security given for the release of a person in custody of law, furnished by
him or a bondsman, to guaranty his appearance before any court as may be
required
Kinds of Bail
(a) Cash bond

(b) Security bond

Who May Invoke?
A person under detention even if no formal charges have yet been filed (Rule 114,
Rules of Court)
Who Are Entitled?
(a) Persons charged with offenses punishable by Reclusion Perpetua or Death, when
evidence of guilt is strong
(b) Persons convicted by the trial court. Bail is only discretionary pending appeal.
(c) Persons who are members of the AFP facing a court martial.
In Paderanga v. CA, all persons actually detained, except those charged with
offenses punishable by reclusion perpetua or death when evidence of guilt is strong,
shall, before conviction, be bailable but sufficient sureties. One is under the custody
of the law either when he has been arrested or has surrendered himself to the
jurisdiction of the court, as in the case where through counsel petitioner for bail who
was confined in a hospital communicated his submission to the jurisdiction of the
court.

Other Rights in Relation to Bail

The right to bail shall NOT be impaired even when the privilege of the writ of
habeas corpus is suspended.
Excessive bail shall not be required.
Factors in Fixing Amount of Bail
(a) Ability to post bail
(b) Nature of the offense
(c) Penalty imposed by law
(d) Character and reputation of the accused
(e) Health of the accused
(f) Strength of the evidence
(g) Probability of appearing at the trial
(h) Forfeiture of previous bail bonds
(i) Whether accused was a fugitive from justice when arrested
(j) If accused is under bond in other cases
Implicit Limitations on the Right to Bail
(a) The person claiming the right must be in actual detention or custody of the law.
In People v. Donato, charged with rebellion, a bailable offense, Salas
nevertheless agreed to remain in legal custody during the pendency of the trial of
his criminal case. The Court held that he does not have the right to bail, because
bu his act he has waived his right.

(b) The constitutional right is available only in criminal cases, not, e.g. in
deportation and extradition proceedings.
Note:
(a) Right to bail is not available in the military.
In Comendador v. De Villa, soldier under court martial does not enjoy the right
to bail. It is because of the disciplinary structure of the military and because soldiers
are allowed the fiduciary right to bear arms and can therefore cause great havoc...
Nor can appeal be made to the equal protection clause ebcause equal protection
applies only to those who are equally situated.
(b) Apart from bail, a person may attain provisional liberty through
recognizance.
In US v. Puruganan, the Court held that extradition is not a criminal proceeding.
Hence, since bail is available only in criminal proceedings, a respondent in an
extradition proceeding is not entitled to a bail. He should apply for a bail in the court
where he will be tried.
F. RIGHTS OF THE ACCUSED
Section 14, Art. III.
1. No person shall be held to answer for a criminal offense without due
process of law.
2. In all criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved, and shall enjoy the right to be heard by
himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and public trial, to
meet the witnesses face to face, and to have compulsory process to
secure the attendance of witnesses and the production of evidence in his
behalf. However, after arraignment, trial may proceed notwithstanding the
absence of the accused: Provided, that he has been duly notified and his
failure to appear is unjustifiable.
The Rights of the Accused Include
1. Criminal due process;
2. Presumption of innocence;
3. Right to be heard by himself or counsel;
4. Right to be informed of the nature and cause of the accusation against him;
5. Right to speedy, impartial and public trial;
6. Right to meet the witnesses face to face;
7. Right to compulsory process to secure attendance of witnesses and production of
evidence; and
8. trial in absentia
1. Criminal Due Process
Criminal process includes

a) Investigation prior to the filing of charges

b) Preliminary examination and investigation after charges are filed
c) Period of trial
Requirements of Criminal Due Process
1. Impartial and competent court in accordance with procedure prescribed by law;
2. Proper observance of all the rights accorded the accused under the Constitution
and the applicable statutes (example of statutory right of the accused: right to
Preliminary investigation)
Mistrial may be declared if shown that proceedings were held under
circumstances as would prevent the accused from freely making his defense or the
judge from freely arriving at his decision.
There is violation of due process when law not published and a person is
impleaded for violation of such law.
There is violation of due process when appeal is permitted by law but there is
denial thereof.
2. Presumption of Innocence
Burden of proof to establish the guilt of the accused is with the prosecution.
Conviction depends on the strength of prosecution, not on the weakness of the
defense
The presumption may be overcome by contrary presumption based on the
experience of human conduct. (e.g unexplained flight may lead to an inference of
guilt, as the wicked flee when no man pursueth, but the righteous are as bold as a
lion.)
The constitutional presumption will not apply as long as there is some rational
connection between the fact proved and the ultimate fact presumed, and the
inference of one fact from proof of another shall not be so unreasonable as to be a
purely arbitrary mandate. Cooley
No inference of guilt may be drawn against an accused for his failure to make a
statement of any sort.
In Dumlao v. Comelec, for the purposes of disqualification in an election, section
4 of BP Blg. 52 says that the filing of charges for the commission of such crimes
before civil court or military tribunal after preliminary investigation shall be prima
facie evidence of such fact (disqualification). The Court held that this provision
violates the guarantee of presumption of innocence. Although filing of charges is
only prima facie evidence and may be rebutted, the proximity of elections and
consequent risk of not having time to rebut the prima facie evidence already in
effect make him suffer as though guilty even before trial.

Equipoise Rule evidence of both sides are equally balanced, in which case the
constitutional presumption of innocence should tilt the scales in favor of
theaccused.
3. Right to be Heard by Himself and Counsel
Indispensable in any criminal prosecution where the stakes are the liberty or even
the life of the accused
Assistance of counsel begins from the time a person is taken into custody and
placed under investigation for the commission of a crime.
This is not subject to waiver.
Right to counsel means the right to effective representation.
If the accused appears at arraignment without counsel, the judge must:
(a) Inform the accused that he has a right to a counsel before arraignment;
(b) Ask the accused if he desires the aid of counsel;
(c) If the accused desires counsel, but cannot afford one, a counsel de oficio
must be appointed;
(d) If the accused desires to obtain his own counsel, the court must give him
a reasonable time to get one.
4. Nature and Cause of Accusation
Purpose for the Right to be informed of the Nature and Cause of
Accusation
(1) To furnish the accused with a description of the charge against him as will enable
him to make his defenses;
(2) To avail himself of his conviction or acquittal against a further prosecution for the
same cause;
(3) To inform the court of the facts alleged.
The description and not the designation of the offense is controlling (The real
nature of the crime charged is determined from the recital of facts in the
information. It is not determined based on the caption or preamble thereof nor from
the specification of the provision of law allegedly violated.)
If the information fails to allege the material elements of the offense, the accused
cannot be convicted thereof even if the prosecution is able to present evidence
during the trial with respect to such elements.
Void for Vagueness Rule accused is denied the right to be informed of the
charge against him and to due process as well, where the statute itself is couched in
such indefinite language that it is not possible for men of ordinary intelligence to
determine therefrom what acts or omissions are punished and
hence, shall be avoided.

 In Estrada vs Sandiganbayan, the Court held that the Void for Vagueness
Doctrine merely requires a reasonable degree of certainty and not absolute
precision or mathematical exactitude.
5. The Trial
Factors in Determining Whether There Is Violation
(a) Time expired from the filing of the information
(b) Length of delay involved
(c) Reasons for the delay
(d) Assertion or non-assertion of the right by the accused
(e) Prejudice caused to the defendant.
Effect of dismissal based on violation of this right: it amounts to an acquittal
and can be used as basis to claim double jeopardy. This would be the effect even if
the dismissal was made with the consent of the accused
Remedy if the Right is Violated
(1) He can move for the dismissal of the case;
(2) If he is detained, he can file a petition for the issuance of writ of habeas corpus.
Speedy trial 1. Free from vexatious, capricious and oppressive delays
2. To relieve the accused from needless anxieties before sentence is pronounced
upon him
Impartial trial the accused is entitled to the cold neutrality of an impartial
judge. It is an element of due process.
Public trial: The attendance at the trial is open to all irrespective of their
relationship to the accused. However, if the evidence to be adduced is offensive to
decency or public morals, the public may be excluded.
The right of the accused to a public trial is not violated if the hearings are
conducted on Saturdays, either with the consent of the accused or if failed to object
thereto.
The right to be present covers the period from arraignment to promulgation of
sentence.
General Rule: the accused may waive the right to be present at the trial by not
showing up. However, the court can still compel the attendance of the accused if
necessary for identification purposes.
Exception: If the accused, after arraignment, has stipulated that he is
indeed the person charged with the offense and named in the information,
and that any time a witness refers to a name by which he is known, the
witness is to be understood as referring to him.

 Trial in Absentia is mandatory upon the court whenever the accused has been
arraigned.
There is also Promulgation in Absentia
While the accused is entitled to be present during promulgation of judgment, the
absence of his counsel during such promulgation does not affect its validity
The trial in absentia does not abrogate the provisions of the Rules of Court
regarding forfeiture of bail bond if the accused fails to appear at his trial.
A court has the power to prohibit a person admitted to bail from leaving the
Philippines as this is a necessary consequence of the nature and function of a bail
bond
6. The Right to Meet the Witnesses Face to Face
Purposes of the Right to Meet the Witnesses Face to Face
(1) To afford the accused an opportunity to cross-examine the witness
(2) To allow the judge the opportunity to observe the deportment of the witness
Principal Exceptions to this Right
(1) The admissibility of dying declarations
(2) Trial in absentia under Section 14(2)
With respect to child testimony
Testimony of witness who was not cross-examined is not admissible as evidence
for being hearsay.
If a prosecution witness dies before his cross-examination can be completed, his
direct testimony cannot be stricken off the record, provided the material points of
his direct testimony had been covered on cross.
The right to confrontation may be waived.
7. Compulsory Process
The accused is entitled to the issuance of subpoena ad testificandum and
subpoena duces tecum for the purpose of compelling the attendance of witness and
the production of evidence that he may need for his defense.
Failure to obey punishable as contempt of court.
There are exceptional circumstances when the defendant may ask for conditional
examination, provided the expected testimony is material of any witness under
circumstances that would make him unavailable from attending the trial.
8. Trial in Absentia
Trial in Absentia May Only Be Allowed If the Following Requisites Are Met:

(1)
(2)
(3)
(4)

the accused has been validly arraigned;

Accused has already been arraigned;
Accused has been duly notified of the trial; and
His failure to appear is unjustifiable.
G. HABEAS CORPUS
Section 15, Art. III. The privilege of the writ of habeas corpus shall not be
suspended except in cases of invasion or rebellion, when the public safety
requires it.

Writ of Habeas Corpus is a written order issued by a court, directed to a person

detaining another, commanding him to produce the body of the prisoner at a
designated time and place with the day and cause of his caption and detention.
Privilege of the Writ of Habeas Corpus the right to have an immediate
determination of the legality of the deprivation of physical liberty.
The President may suspend the privilege:
(1) in cases of invasion or rebellion
(2) when public safety requires it.
Habeas corpus lies only where the restraint of a person's liberty has been judicially
adjudged to be illegal or unlawful (In re: Sumulong)
The writ is a prerogative writ employed to test the validity of detention
To secure the detainees release
The action shall take precedence in the calendar of the court and must be acted
upon immediately
When available (enumeration not exclusive)
restoration of liberty of an individual subjected to physical restraint
may be availed of where, as a consequence of a judicial proceeding:
1. there has been deprivation of a constitutional right resulting in the
restraint of the person
2. the court has no jurisdiction to impose the sentence, or
3. an excessive penalty has been imposed, since such sentence is void as to
the excess.
May be extended to cases by which rightful custody of any person is withheld
from the person entitled thereto
When moral restraint is exerted (Caunca vs Salazar)

 Right was accorded a person was sentenced to a longer penalty than was
subsequently meted out to another person convicted of the same offense.
(Gumabon vs Director of Prisons)
Unlawful denial of bail
When not available (enumeration not exclusive)
the person alleged to be restrained is in the custody of an officer under a process
issued by the court which has jurisdiction to do so
desaparecidos (disappeared persons) persons could not be found; remedy is to
refer the matter to Commission on Human Rights
Procedure
Need to comply with writ; disobedience thereof constitutes contempt
Who may suspend the privilege
The President
Grounds for Suspension of the privilege
1. invasion or rebellion
2. when public safety requires it
Section 18, Art. VII. The President shall be the Commander-in-Chief of all
armed forces of the Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days, suspend
the privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a vote of at least
a majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set aside
by the President. Upon the initiative of the President, the Congress may,
in the same manner, extend such proclamation or suspension for a period
to be determined by the Congress, if the invasion or rebellion shall persist
and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the proclamation of
martiallaw or the suspension of the privilege of the writ or the extension

thereof, and must promulgate its decision thereon within thirty days from
its filing.
A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies,
nor authorize the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly
connected with invasion.
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released.
Lansang doctrine (Lansang vs Garcia): SC has the power to inquire into the
factual basis of the suspension of the privilege of the writ. It is written in Article VII,
Sec. 18 of the Constitution.
H. WRIT OF AMPARO
A.M. No. 07-9-12-SC
(25 September 2007)
THE RULE ON THE WRIT OF AMPARO
SECTION 1. Petition. The petition for a writ of amparo is a remedy available to
any person whose right to life, liberty and security is violated or threatened with
violation by an unlawful act or omission of a public official or employee, or of a
private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats
thereof.
SEC. 2. Who May File. The petition may be filed by the aggrieved party or by any
qualified person or entity in the following order:
1. Any member of the immediate family, namely: the spouse, children and parents
of the aggrieved party;
2. Any ascendant, descendant or collateral relative of the aggrieved party within the
fourth civil degree of consanguinity or affinity, in default of those mentioned in the
preceding paragraph; or

3. Any concerned citizen, organization, association or institution, if there is no

known member of the immediate family or relative of the aggrieved party.
The filing of a petition by the aggrieved party suspends the right of all other
authorized parties to file similar petitions. Likewise, the filing of the petition by an
authorized party on behalf of the aggrieved party suspends the right of all others,
observing the order established herein.
SEC. 3. Where to File. The petition may be filed on any day and at any time with
the Regional Trial Court of the place where the threat, act or omission was
committed or any of its elements occurred, or with the Sandiganbayan, the Court of
Appeals, the Supreme Court, or any justice of such courts. The writ shall be
enforceable anywhere in the Philippines.
When issued by a Regional Trial Court or any judge thereof, the writ shall be
returnable before such court or judge.
When issued by the Sandiganbayan or the Court of Appeals or any of their justices,
it may be returnable before such court or any justice thereof, or to any Regional Trial
Court of the place where the threat, act or omission was committed or any of its
elements occurred.
When issued by the Supreme Court or any of its justices, it may be returnable
before such Court or any justice thereof, or before the Sandiganbayan or the Court
of Appeals or any of their justices, or to any Regional Trial Court of the place where
the threat, act or omission was committed or any of its elements occurred.

SEC. 4. No Docket Fees. The petitioner shall be exempted from the payment of
the docket and other lawful fees when filing the petition. The court, justice or judge
shall docket the petition and act upon it immediately.
SEC. 5. Contents of Petition. The petition shall be signed and verified and shall
allege the following:
1. The personal circumstances of the petitioner;
2. The name and personal circumstances of the respondent responsible for the
threat, act or omission, or, if the name is unknown or uncertain, the respondent may
be described by an assumed appellation;
3. The right to life, liberty and security of the aggrieved party violated or threatened
with violation by an unlawful act or omission of the respondent, and how such threat
or violation is committed with the attendant circumstances detailed in supporting
affidavits;
4. The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or individuals, as well
as the manner and conduct of the investigation,

together with any report;

5. The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for
the threat, act or omission; and
6. The relief prayed for. The petition may include a general prayer for other just and
equitable reliefs.
SEC. 6. Issuance of the Writ. Upon the filing of the petition, the court, justice or
judge shall immediately order the issuance of the writ if on its face it ought to issue.
The clerk of court shall issue the writ under the seal of the court; or in case of
urgent necessity, the justice or the judge may issue the writ under his or her own
hand, and may deputize any officer or person to serve it.
The writ shall also set the date and time for summary hearing of the petition which
shall not be later than seven (7) days from the date of its issuance.
SEC. 7. Penalty for Refusing to Issue or Serve the Writ. A clerk of court who
refuses to issue the writ after its allowance, or a deputized person who refuses to
serve the same, shall be punished by the court, justice or judge for contempt
without prejudice to other disciplinary actions.
SEC. 8. How the Writ is Served. The writ shall be served upon the respondent by
a judicial officer or by a person deputized by the court, justice or judge who shall
retain a copy on which to make a return of service. In case the writ cannot be
served personally on the respondent, the rules on substituted service shall apply.
SEC. 9. Return; Contents. Within seventy-two (72) hours after service of the writ,
the respondent shall file a verified written return together with supporting affidavits
which shall, among other things, contain the following:
1. The lawful defenses to show that the respondent did not violate or threaten with
violation the right to life, liberty and security of the aggrieved party, through any
act or omission;
2. The steps or actions taken by the respondent to determine the fate or
whereabouts of the aggrieved party and the person or persons responsible for the
threat, act or omission;
3. All relevant information in the possession of the respondent pertaining to the
threat, act or omission against the aggrieved party; and
4. If the respondent is a public official or employee, the return shall further state the
actions that have been or will still be taken:
i.

to verify the identity of the aggrieved party;

ii.
iii.
iv.
v.
vi.

to recover and preserve evidence related to the death or

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

The return shall also state other matters relevant to the investigation, its resolution
and the prosecution of the case.
A general denial of the allegations in the petition shall not be allowed.
SEC. 10. Defenses not Pleaded Deemed Waived. All defenses shall be raised in
the return, otherwise, they shall be deemed waived.
SEC. 11. Prohibited Pleadings and Motions. The following pleadings and
motions are prohibited:
1. Motion to dismiss;
2. Motion for extension of time to file return, opposition, affidavit, position paper
and other pleadings;
3. Dilatory motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply;
8. Motion to declare respondent in default;
9. Intervention;
10. Memorandum;
11. Motion for reconsideration of interlocutory orders or interim relief orders; and
12. Petition for certiorari, mandamus or prohibition against any interlocutory order.
SEC. 12. Effect of Failure to File Return. In case the respondent fails to file a
return, the court, justice or judge shall proceed to hear the petition ex parte.
SEC. 13. Summary Hearing. The hearing on the petition shall be summary.
However, the court, justice or judge may call for a preliminary conference to
simplify the issues and determine the possibility of obtaining stipulations and
admissions from the parties.
The hearing shall be from day to day until completed and given the same priority as
petitions for habeas corpus.
SEC. 14. Interim Reliefs. Upon filing of the petition or at anytime before final
judgment, the court, justice or judge may grant any of the following reliefs:

(a) Temporary Protection Order. The court, justice or judge, upon motion or motu
proprio, may order that the petitioner or the aggrieved party and any member of
the immediate family be protected in a government agency or by an accredited
person or private institution capable of keeping and securing their safety. If the
petitioner is an organization, association or institution referred to in Section 3(c) of
this Rule, the protection may be extended to the officers involved.
The Supreme Court shall accredit the persons and private institutions that shall
extend temporary protection to the petitioner or the aggrieved party and any
member of the immediate family, in accordance with guidelines which it shall issue.
The accredited persons and private institutions shall comply with the rules and
conditions that may be imposed by the court, justice or judge.
(b) Inspection Order. The court, justice or judge, upon verified motion and after due
hearing, may order any person in possession or control of a designated land or
other property, to permit entry for the purpose of inspecting, measuring, surveying,
or photographing the property or any relevant object or operation thereon.
The motion shall state in detail the place or places to be inspected. It shall be
supported by affidavits or testimonies of witnesses having personal knowledge of
the enforced disappearance or whereabouts of the aggrieved party.
If the motion is opposed on the ground of national security or of the privileged
nature of the information, the court, justice or judge may conduct a hearing in
chambers to determine the merit of the opposition.
The movant must show that the inspection order is necessary to establish the right
of the aggrieved party alleged to be threatened or violated.
The inspection order shall specify the person or persons authorized to make the
inspection and the date, time, place and manner of making the inspection and may
prescribe other conditions to protect the constitutional rights of all parties. The
order shall expire five (5) days after the date of its issuance, unless extended for
justifiable reasons.
(c) Production Order. The court, justice or judge, upon verified motion and after due
hearing, may order any person in possession, custody or control of any designated
documents, papers, books, accounts, letters, photographs, objects or tangible
things, or objects in digitized or electronic form, which constitute or contain
evidence relevant to the petition or the return, to produce and permit their
inspection, copying or photographing by or on behalf of the movant.
The motion may be opposed on the ground of national security or of the privileged
nature of the information, in which case the court, justice or judge may conduct a
hearing in chambers to determine the merit of the opposition.
The court, justice or judge shall prescribe other conditions to protect the
constitutional rights of all the parties.

(d) Witness Protection Order. The court, justice or judge, upon motion or motu
proprio, may refer the witnesses to the Department of Justice for admission to the
Witness Protection, Security and Benefit Program, pursuant to Republic Act No.
6981.
The court, justice or judge may also refer the witnesses to other government
agencies, or to accredited persons or private institutions capable of keeping and
securing their safety.
SEC. 15. Availability of Interim Reliefs to Respondent. Upon verified motion of
the respondent and after due hearing, the court, justice or judge may issue an
inspection order or production order under paragraphs (b) and (c) of the preceding
section.
A motion for inspection order under this section shall be supported by affidavits or
testimonies of witnesses having personal knowledge of the defenses of the
respondent.
SEC. 16. Contempt. The court, justice or judge may order the respondent who
refuses to make a return, or who makes a false return, or any person who otherwise
disobeys or resists a lawful process or order of the court to be punished for
contempt. The contemnor may be imprisoned or imposed a fine.
SEC. 17. Burden of Proof and Standard of Diligence Required. The parties
shall establish their claims by substantial evidence.
The respondent who is a private individual or entity must prove that ordinary
diligence as required by applicable laws, rules and regulations was observed in the
performance of duty.
The respondent who is a public official or employee must prove that extraordinary
diligence as required by applicable laws, rules and regulations wasobserved in the
performance of duty.
The respondent public official or employee cannot invoke the presumption that
official duty has been regularly performed to evade responsibility or liability.
SEC. 18. Judgment. The court shall render judgment within ten (10) days from the
time the petition is submitted for decision. If the allegations in the petition are
proven by substantial evidence, the court shall grant the privilege of the writ and
such reliefs as may be proper and appropriate; otherwise, the privilege shall be
denied.
SEC. 19. Appeal. Any party may appeal from the final judgment or order to the
Supreme Court under Rule 45. The appeal may raise questions of fact or law or
both.
The period of appeal shall be five (5) working days from the date of notice of the
adverse judgment.

The appeal shall be given the same priority as in habeas corpus cases.
SEC. 20. Archiving and Revival of Cases. The court shall not dismiss the
petition, but shall archive it, if upon its determination it cannot proceed for a valid
cause such as the failure of petitioner or witnesses to appear due to threats on their
lives.
A periodic review of the archived cases shall be made by the amparo court that
shall, motu proprio or upon motion by any party, order their revival when ready for
further proceedings. The petition shall be dismissed with prejudice upon failure to
prosecute the case after the lapse of two (2) years from notice to the petitioner of
the order archiving the case.
The clerks of court shall submit to the Office of the Court Administrator a
consolidated list of archived cases under this Rule not later than the first week of
January of every year.
SEC. 21. Institution of Separate Actions. This Rule shall not preclude the filing
of separate criminal, civil or administrative actions.
SEC. 22. Effect of Filing of a Criminal Action. When a criminal action has been
commenced, no separate petition for the writ shall be filed. The reliefs under the
writ shall be available by motion in the criminal case.
The procedure under this Rule shall govern the disposition of the reliefs available
under the writ of amparo.
SEC. 23. Consolidation. When a criminal action is filed subsequent to the filing of
a petition for the writ, the latter shall be consolidated with the criminal action.
When a criminal action and a separate civil action are filed subsequent to a petition
for a writ of amparo, the latter shall be consolidated with the criminal action.
After consolidation, the procedure under this Rule shall continue to apply to the
disposition of the reliefs in the petition.
SEC. 24. Substantive Rights. This Rule shall not diminish, increase or modify
substantive rights recognized and protected by the Constitution.
SEC. 25. Suppletory Application of the Rules of Court. The Rules of Court shall
apply suppletorily insofar as it is not inconsistent with this Rule.
SEC. 26. Applicability to Pending Cases. This Rule shall govern cases involving
extralegal killings and enforced disappearances or threats thereof pending in the
trial and appellate courts.
SEC. 27. Effectivity. This Rule shall take effect on October 24, 2007, following its
publication in three (3) newspapers of general circulation.

I. SPEEDY DISPOSATION OF CASES

Section 16, Art. III. All persons shall have the right to a speedy disposition
of their cases before all judicial, quasi-judicial, or administrative bodies.
Speedy Trial vs. Speedy Disposition of Cases
Speedy trial
Speedy disposition of cases
Refers to trial phase only
Refers to disposition of cases (All
phases)
Criminal cases only
Judicial, quasi-judicial or admin.
Proceedings
Periods for decision for courts (Sec. 15, Art. VIII)
SC: 24 months from submission
All lower collegiate courts: 12 months unless reduced by SC
All other lower courts: 3 months
Periods for decision for Constitutional Commissions (Sec 7, Art. IX-A)
60 days from date of submission for decision or resolution
Factors considered in determining whether the right is violated
1. Length of delay
2. Reason of delay
3. Assertion of the right or failure to assert it
4. Prejudice caused by delay
Remedy in case there has been unreasonable delay in resolution of a case:
Dismissal through mandamus
J. RIGHT AGAINST SELF-INCRIMINATION
Section 17, Art. III. No person shall be compelled to be a witness against
himself.
Based on:
1. Humanitarian reasons it is intended to prevent the State, with all its coercive
powers, from extracting from the suspect testimony that may convict him;
2. Practical reasons a person subjected to such compulsion is likely to perjure
himself for his own protection
Applicable to:
Criminal prosecutions, government proceedings, including civil actions and
administrative or legislative investigations
Transactional Immunity Statute testimony of any person or whose possession
of documents or other evidence necessary or convenient to determine the truth in

any investigation conducted is immune from criminal prosecution for an offense to

which such compelled testimony relates.
Use and Fruit Immunity Statute prohibits the use of the witness' compelled
testimony and its fruit in any manner in connection with the criminal prosecution for
an offense to which such compelled testimony relates.
May be Claimed by:
1. Accused at all times; there is a reasonable assumption that the purpose of his
interrogation will be to incriminate him
2. Witness only when an incriminating question is asked, since the witness has no
way of knowing in advance the nature or effect of the question to be put to him
- He cannot invoke right to self-incrimination when:
a) The question is relevant and otherwise allowed even if the answer may
tend to incriminate him or subject him to civil liability
b) the question relates to past criminality for which the witness can no longer
be prosecuted
c) he has been previously granted immunity under a validly enacted statute
Only natural persons can invoke this right. Judicial persons are subject to the
visitorial powers of the state in order to determine compliance with the conditions of
the charter granted to them.
Scope:
(1) Testimonial Compulsion
In Villaflor v. Summers, since the kernel of the privilege was the prohibition of
testimonial compulsion, the Court was willing to compel a pregnant woman
accused of adultery to submit to the indignity of being tested for pregnancy. Being
purely a mechanical act, it is not a violation of her constitutional right against selfincrimination.
(2) Production of Documents, Papers and Chattels. Exception: when books of
accounts are to be examined in the exercise of police power and power of taxation.
What is prohibited is the use of physical or moral compulsion to extort
communication from the witness or to otherwise elicit evidence which would not
exist were it not for the actions compelled from the witness.
The right does not prohibit the examination of the body of the accused or the use
of findings with respect to his body as physical evidence. Hence, the fingerprinting
of an accused would not violate the right against self-incrimination. However,
obtaining a sample of the handwriting of the accused would violate this right if he is
charged for falsification.

 The accused cannot be compelled to produce a private document in his possession

which might tend to incriminate him. However, a third person in custody of the
document may be compelled to produce it.

Right May be Waived:

- Either:
a) Directly, or
b) By failure to invoke it PROVIDED the waiver is certain and unequivocal and
intelligently and
willingly made.
Section 18 (1), Art. III. No person shall be detained solely by reason of his
political beliefs and aspirations.
J. RIGHT AGAINST INVOLUNTARY SERVITUDE
Section 18 (2), Art. III. No involuntary servitude in any form shall exist
except as a punishment for a crime whereof the party shall have been duly
convicted.
Involuntary Servitude the condition of one who is compelled by force, coercion,
or imprisonment, and against his will, to labor for another, whether he is paid or not.
Involuntary Servitude Includes
(1) Slavery civil relation in which one man has absolute power over the life,
fortune and liberty of another;
(2) Peonage a condition of enforced servitude by which the servitor is restrained
of his liberty and compelled to labor in liquidation of some debt or obligation, real or
pretended, against his will
General Rule
No involuntary service in any form shall exist.
Exceptions
1. Punishment for a crime for which the party shall have been duly convicted
(Sec. 18, Art. III)
2. Personal military or civil service in the interest of national defense
(Sec. 4, Art. II)
3. Naval enlistment remain in service until the end of voyage so that the crew
would not desert the ship, making it difficult for the owners to recruit new hands to
continue the voyage (Robertson vs Baldwin)

4. Posse comitatus in pursuit of persons who might have violated the law, the
authorities might command all male inhabitants of a certain age to assist them (US
vs Pompeya)
5. Return to work order in industries affected with public interest
(Kapisanan ng Manggagawa sa Kahoy vs Gotamco)
6. Patria Potestas unemancipated minors are obliged to obey their parents so
long as they are under parental power and to observe respect and reverence to
them always (Art. 311, Civil Code)
US vs Pompeya

Pollock vs Williams

An Act providing for the method by

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

K. CRUEL AND INHUMAN PUNISHMENT

Section 19, Art. III.
1. Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death penalty be imposed, unless, for
compelling reasons involving heinous crimes, the Congress hereafter
provides for it. Any death penalty already imposed shall be reduced to
reclusion perpetua.
2. The employment of physical, psychological, or degrading punishment
against any prisoner or detainee or the use of substandard or inadequate
penal facilities under subhuman conditions shall be dealt with by law.
When is a penalty cruel, degrading and inhuman?
(1) A penalty is cruel and inhuman if it involves torture or lingering suffering.
Ex. Being drawn and quartered.
(2) A penalty is degrading if it exposes a person to public humiliation. Ex. Being
tarred and feathered, then paraded throughout town.

Standards Used
(1) The punishment must not be so severe as to be degrading to the dignity of
human beings.
(2) It must not be applied arbitrarily.
(3) It must not be unacceptable to contemporary society
(4) It must not be excessive, i.e. it must serve a penal purpose more effectively than
a less severe punishment would.
Excessive Fine
A fine is excessive, when under any circumstance, it is disproportionate to the
offense.
Note: Fr. Bernas says that the accused cannot be convicted of the crime to which
the punishment is attached if the court finds that the punishment is cruel,
degrading or inhuman.
Reason: Without a valid penalty, the law is not a penal law.
L. NON IMPRISONMENT FOR DEBT
Section 20, Art. III. No person shall be imprisoned for debt or non-payment
of a poll tax.
For humanitarian reasons an added guaranty of the liberty of persons against
their incarceration for the enforcement of purely private debts because of their
misfortune of being poor
Debt any civil obligation arising from a contract, expressed or implied, resulting in
any liability to pay in money.
Scope of guaranty against imprisonment for non-payment of debt
If an accused fails to pay the fine imposed upon him, this may result in his
subsidiary imprisonment because his liability is ex delicto and not ex contractu.
A FRAUDULENT debt may result in the imprisonment of the debtor if:
1. The fraudulent debt constitutes a crime such as estafa; and
2. The accused has been duly convicted.
POLL TAX
General Rule: Non-payment of taxes is punishable with imprisonment.
Exception: Failure to pay a poll tax
Poll tax a specific sum levied upon every person belonging to a certain class
without regard to his property or occupation.

 A tax is not a debt since it is an obligation arising from law. Hence, its nonpayment 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)
2)
3)
4)

Acquittal
Conviction
Dismissal W/O the EXPRESS consent of the accused
Dismissal on the merits.

Examples of termination of jeopardy:

(a) Dismissal based on violation of the right to a speedy trial. This amounts to an
acquittal.
(b) Dismissal based on a demurrer to evidence. This is a dismissal on the merits.
(c) Dismissal on motion of the prosecution, subsequent to a motion for
reinvestigation filed by the accused.
(d) Discharge of an accused to be a state witness. This amounts to an acquittal.
When can the PROSECUTION appeal from an order of dismissal:
(a) If dismissal is on motion of the accused. Exception: If motion is based on
violation of the right to a speedy trial or on a demurrer to evidence.
(b) If dismissal does NOT amount to an acquittal or dismissal on the merits
(c) If the question to be passed upon is purely legal.
(d) If the dismissal violates the right of due process of the prosecution.
(e) If the dismissal was made with grave abuse of discretion.
What are considered to be the SAME OFFENSE:
(a) Exact identity between the offenses charged in the first and second cases.

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

(c) One offense is necessarily included or necessary includes the other.
Note: where a single act results in the violation of different laws or different
provisions of the same law, the prosecution for one will not bar the other so long as
none of the exceptions apply.
Same Act
Double jeopardy will result if the act punishable under the law and the ordinance
are the same. For there to be double jeopardy, it is not necessary that the offense
be the same.
Supervening Facts
1) Under the Rules of Court, a conviction for an offense will not bar a prosecution for
an offense which necessarily includes the offense charged in the former information
where:
(a) The graver offense developed due to a supervening fact arising from the same
act or omission constituting the former charge.
(b) The facts constituting the graver offense became known or were discovered only
after the filing of the former information.
(c) The plea of guilty to the lesser offense was made without the consent of the
fiscal and the offended party.
2) Under (1)(b), if the facts could have been discovered by the prosecution but were
not discovered because of the prosecutions incompetence, it would not be
considered a supervening event.
Effect of appeal by the accused
If the accused appeals his conviction, he WAIVES his right to plead double
jeopardy. The whole case will be open to review by the appellate court. Such court
may even increase the penalties imposed on the accused by the trial court.
In Almario v. CA, the Court held that the delays were not unreasonable; hence,
there was no denial of the right to speedy trial. Second, the dismissal was with the
consent of the accused. Hence, reinstatement did not violate the right against
double jeopardy.
N. EX POST FACTO LAWS AND BILL OF ATTAINDER
Section 22, Art. III. No ex post facto law or bill of attainder shall be
enacted.
Kinds of Ex Post Facto Laws

(1) One which makes an action done before the passing of the law, and which was
innocent when done, criminal, and punishes such action.
(2) One which aggravates the crime or makes it greater than when it was
committed.
(3) One which changes the punishment and inflicts a greater punishment than that
which the law annexed to the crime when it was committed.
(4) One which alters the legal rules of evidence and receives less testimony than
the law required at the time of the commission of the offense in order to convict the
accused.
(5) One which assumes to regulate civil rights and remedies only BUT, in effect,
imposes a penalty or deprivation of a right, which, when done, was lawful.
(6) One which deprives a person accused of a crime of some lawful protection to
which he has become entitled such as the protection of a former conviction or
acquittal, or a proclamation of amnesty. (In Re Kay Villegas Kami)
Characteristics of Ex Post Facto Law
(a) Must refer to criminal matters
(b) Prejudicial to the accused
(c) Retroactive in application
In Lacson v. Exec. Sec., the Court held that in general, ex post facto law prohibits
retrospectivity of penal laws. RA No. 8249 is not a penal law.... The contention that
the new law diluted their right to a two-tiered appeal is incorrect because the right
to appeal is not a natural right but statutory in nature that can be regulated by law.
RA 8249 pertains only to matters of procedure, and being merely an amendatory
statute it does not partake the nature of ex post facto law.
In Calder v. Bull, the Court said that when the law alters the legal rules of
evidence or mode of trial, it is an ex post facto law. Exception: (Beazell v. Ohio)
unless the changes operate only in limited and unsubstantial manner to the
disadvantage of the accused.
In Bayot v. Sandiganbayan, the accused was convicted by the Sandiganbayan
for estafa on May 30, 1980. Accused appealed. On March 16, 1982, BP Blg. 195 was
passed authorizing suspension of public
officers against whom an information may be pending at any stage. On July 22,
1982, the court suspended the accused. The Supreme Court ruled that Art. 24 of the
Revised Penal Code that suspension of an officer during trial shall not be considered
a penalty. The suspension in the case is merely a preventive and not a penal
measure which therefore does not come under the ex post facto prohibition.
BILL OF ATTAINDER

Bill of attainder is a legislative act which inflicts punishment without judicial trial. If
the punishment be less than death, the act is termed a bill of pains and penalties.
(Cummings v. Missouri)
(All Bills of Attainder are Ex Post Facto Laws)
Elements of Bill of Attainder
1. There must be a law.
2. The law imposes a penal burden on a named individual or easily ascertainable
members of a group.
3. There is a direct imposition of penal burden without judicial trial.
O. PRIVACY OF COMMUNICATION
Section 3(1), Art. III. The privacy of communication and correspondence
shall be inviolable except upon lawful order of the court, or when public
safety or order requires otherwise, as prescribed by law.
Forms of Correspondences and Communication Covered
1.
2.
3.
4.
5.

letters
messages
telephone calls
telegrams, and
the likes

Intrusion into the Privacy of Communication May Be Allowed

1. Upon lawful order of the court, or
2. When public safety or order requires otherwise as prescribed by law.
When intrusion is made without a judicial order, it would have to be based upon a
government official's assessment that public safety and order demand such
intrusion.
Public Order and Safety the security of human lives, liberty, and property
against the activities of invaders, insurrectionists, and rebels.
RA No. 4200 known as the Anti-Wiretapping Law provides penalties for
specific violations of private communication. Under Sec. 3 of the Act allows
court-authorized taps, under specific conditions for the crimes of treason,
espionage, provoking war and disloyalty in case of war, piracy, mutiny in the
high seas, rebellion, conspiracy and proposal to commit rebellion, inciting
rebellion, sedition, conspiracy to commit sedition, inciting to sedition,
kidnapping.
P. RIGHT TO PRIVACY
In Ople v. Torres, the right to privacy being a fundamental right, the government
has the burden of proof to show that a statute (AO no. 308 in this case) is justified
by some compelling state interest and that it is narrowly drawn.

In no uncertain terms, we also underscores that the right to privacy does not bar
all incursions into individual privacy. The right is not intended to stifle scientific and
technological advancements that enhance public service and the common good. It
merely requires that the law be narrowly focused. Intrusions into the right must be
accompanied by proper safeguards and well-defined standards to prevent
unconstitutional invasions.
In Roe v. Wade, the Court held that abortions are permissible for any reason a
woman chooses, up until the "point at which the fetus becomes viable, that is,
potentially able to live outside the mother's womb.
(a) The Constitution does not explicitly mention any right to privacy but the Court
has recognized that such right does exist in the Constitution. The Court deemed
abortion a fundamental right under the United States Constitution, thereby
subjecting all laws attempting to restrict it to the standard of strict scrutiny. Where
certain fundamental rights are involved, the Court has held that regulation
limiting these rights may be justified only by a compelling state interest.
(b) The right to privacy is broad enough to encompass a womans decision whether
or not to terminate her pregnancy. But a womans right to terminate her pregnancy
at whatever time, in whatever way and for whatever reason she alone chooses is
NOT absolute. While recognizing the right to privacy, the Court also acknowledges
that some state regulation in areas protected by a right is appropriate. A state may
properly assert important interests in safeguarding health, in maintaining medical
standards, and in protecting potential life.
Q. WRIT OF HABEAS DATA
Writ of habeas data is a remedy available to any person whose right to privacy
in life, liberty or security is violated or threatened by an unlawful act or omission of
a public official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the person, family,
home and correspondence of the aggrieved party.
It is governed by The Rule on the Writ of Habeas Data (A.M. No. 08-1-16- SC full
text), which was approved by the Supreme Court on 22 January 2008. That Rule
shall not diminish, increase or modify substantive rights.
Constitutional Basis
Section 5(5), Art. VIII. Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and procedure in
all courts, the admission to the practice of law, the integrated bar, and
legal assistance to the under-privileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of cases,
shall be uniform for all courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of procedure of special
courts and quasi-judicial bodies shall remain effective unless disapproved
by the Supreme Court.

 The Rule takes effect on 2 February 2008, following its publication in three (3)
newspapers of general circulation.
Who may file a petition for the issuance of a writ of habeas data?
General rule: The aggrieved party.
Exceptions: In cases of extralegal killings and enforced disappearances, the
petition may be filed by:
(1) Any member of the immediate family of the aggrieved party, namely: the
spouse, children and parents; or
(2) Any ascendant, descendant or collateral relative of the aggrieved party within
the fourth civil degree of consanguinity or affinity, in default of those mentioned in
the preceding paragraph.
Where can the petition be filed?
(1) Regional Trial Court where the petitioner or respondent resides, or that which
has jurisdiction over the place where the data or information is gathered, collected
or stored, at the option of the petitioner.
(2) Supreme Court;
(3) Court of Appeals; or
(4) Sandiganbayan, when the action concerns public data files of government
offices.
No docket and other lawful fees shall be required from an indigent petitioner. The
petition of the indigent shall be docketed and acted upon immediately, without
prejudice to subsequent submission of proof of indigency not later than 15 days
from the filing of the petition.
The verified written petition shall allege the following:
(a) The personal circumstances of the petitioner and the respondent;
(b) The manner the right to privacy is violated or threatened and how it affects the
right to life, liberty or security of the aggrieved party;
(c) The actions and recourses taken by the petitioner to secure the data or
information;
(d) The location of the files, registers or databases, the government office, and the
person in charge, in possession or in control of the data or information, if known;
(e) The reliefs prayed for, which may include the updating, rectification, suppression
or destruction of the database or information or files kept by the respondent. In case

of threats, the relief may include a prayer for an order enjoining the act complained
of; and
(f) Such other relevant reliefs as are just and equitable.
When is the writ of habeas data issued?
Upon the filing of the petition, the court, justice or judge shall immediately order the
issuance of the writ if on its face it ought to issue. The clerk of court shall issue the
writ under the seal of the court and cause it to be served within three (3) days from
its issuance; or, in case of urgent necessity, the justice or judge may issue the writ
under his or her own hand, and may deputize any officer or person to serve it. The
writ shall also set the date and time for summary hearing of the petition which shall
not be later than ten (10) work days from the date of its issuance.
A clerk of court who refuses to issue the writ after its allowance, or a deputized
person who refuses to serve the same, shall be punished by the court, justice or
judge for contempt without prejudice to other disciplinary actions.
The writ shall be served upon the respondent by the officer or person deputized by
the court, justice or judge who shall retain a copy on which to make a return of
service. In case the writ cannot be served personally on the respondent, the rules
on substituted service shall apply.
The respondent shall file a verified written return together with supporting
affidavits within five (5) work days from service of the writ, which period may be
reasonably extended by the Court for justifiable reasons.
Contents of Return
(a) The lawful defenses such as national security, state secrets, privileged
communication, confidentiality of the source of information of media and others;
(b) In case of respondent in charge, in possession or in control of the data or
information subject of the petition:
(i) a disclosure of the data or information about the petitioner, the nature of such
data or information, and the purpose for its collection;
(ii) the steps or actions taken by the respondent to ensure the security and
confidentiality of the data or information; and
(iii) the currency and accuracy of the data or information held; and
(c) Other allegations relevant to the resolution of the proceeding.
When the respondent fails to file a return, the court, justice or judge shall proceed
to hear the petition ex parte, granting the petitioner such relief as the petition may
warrant unless the court in its discretion requires the petitioner to submit evidence.

 Instead of having the hearing in open court, it can be done in chambers when the
respondent invokes the defense that the release of the data or information in
question shall compromise national security or state secrets, or when the data or
information cannot be divulged to the public due to its nature or privileged
character.
The hearing on the petition shall be summary. However, the court, justice or judge
may call for a preliminary conference to simplify the issues and determine the
possibility of obtaining stipulations and admissions from the parties.
Upon its finality, the judgment shall be enforced by the sheriff or any lawful officer
as may be designated by the court, justice or judge within five (5) work days.
When a criminal action has been commenced, no separate petition for the writ
shall be filed, but the reliefs under the writ shall be available by motion in the
criminal case, and the procedure under this Rule shall govern the disposition of the
reliefs available under the writ of habeas data.
When a criminal action and a separate civil action are filed subsequent to a
petition for a writ of habeas data, the petition shall be consolidated with the
criminal action. After consolidation, the procedure under this Rule shall continue to
govern the disposition of the reliefs in the petition.
The introduction of the Writ of Habeas Data into Philippine Justice System
complemented several writs used in the Philippines. These writs which protect the
rights of the individual against the state are as follows:
The Writ of Habeas Corpus a writ ordering a person who detained
another to produce the body and bring it before a judge or court. Its purpose
is to determine whether the detention is lawful or not;
The Writ of Mandamus a writ ordering a governmental agency to
perform a ministerial function;
The Writ of Prohibition a writ ordering a person to prohibit the
commission of an illegal act;
The Writ of Certiorari a writ ordering a person to correct an erroneous
act committed with grave abuse of discretion; and
The Writ of Amparo a writ designed to protect the most basic right of a
human being. These are the right to life, liberty andsecurity guaranteed by
the Constitution.
R. ACCESS TO PUBLIC INFORMATION
Section 7, Art. III. The right of the people to information on matters of
public concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as

may be provided by law.

the citizenry has a right to know what is going on in the country and in his
government so he can express his views thereon knowledgeably and intelligently.
Rights Guaranteed
1. Right to information on matters of public concern ; and
2. Corollary right of access to official records and documents.
These are political rights that are available to citizens only (Bernas, Philippine
Constitution, p. 85).
Limitations: As may be provided by law
Valmonte v Belmonte 1989

Baldoza v Dimaano 1976

Legaspi v Civil Service Commission

1987

Chavez v PCGG 1998

The people have a right to access official

records but they cant compel
custodians of official records to prepare
lists, abstracts, summaries and the like,
such not being based on a demandable
legal right.
Then right to privacy belongs to the
individual and must be invoked by the
individual. A public agency like the GSIS
cannot invoke the right to privacy.
Judges cannot prohibit access to judicial
records. However, a judge may regulate
the manner in which persons desiring to
inspect, examine or copy records in his
office, may exercise their rights.
Personal interest is not required in
asserting the right to information on
matters of public concern. What matters
constitute public concern should be
determined by the court on a case to
case basis.
Public concern (def.) writings coming
into the hands of public officers in
connection with their official functions Illgotten wealth is, by its nature, a matter
of public concern. Privileged
communication: (1) national security, (2)
trade
secrets, (3) criminal matters pending in

court,
Echegaray case

SC held that making the Lethal Injection

Manual inaccessible to the convict was
unconstitutional.

S. FREEDOM OF EXPRESSION
Freedom of Speech at once the instrument and the guaranty and the bright
consummate flower of all liberty. (Wendell Philips)

Scope
Freedom of Expression is available only insofar as it is exercised for the discussion
of matters affecting the public interest. Purely private interest matters do not come
within the guaranty (invasion of privacy is not sanctioned by the Constitution).
covers ideas that are acceptable to the majority and the unorthodox view. (One of
the functions of this freedom is to invite dispute US Supreme Court; I may not
agree with what you say, but I will defend to the death your right to say it. Voltaire)
The freedom to speak includes the right to silent. (This freedom was meant not
only to protect the minority who want to talk but also to benefit the majority who
refuse to listen. - Socrates)
Importance
The ultimate good desired is better reached by a free trade in ideas that the best
test of truth is the power of the thought to get itself accepted in the competition of
the market; and that truth is the only ground upon which their wishes safely can be
carried out.
Modes of Expression
(a) Oral and written language
(b) Symbolisms (e.g. bended knee, salute to the flag, cartoons)
Elements of Freedom of Expression
(1) Freedom from prior restraint or censorship
(2) Freedom from subsequent punishment
Freedom From Previous Restraint or Censorship
Section 4, Art. III. No law shall be passed abridging the freedom of speech,

of expression, or of the press, or the right of the people peaceably to

assemble and petition the government for redress of grievances.
Censorship conditions the exercise of freedom of expression upon the prior
approval of the government. Only those ideas acceptable to it are allowed to be
disseminated.
Censor, therefore, assumes the role of arbiter for the people, usually applying his
own subjective standards in determining the good and the not. Such is anathema in
a free society.
In New York Times v. United States, the Court held that prohibition of prior
restraint is not absolute, although any system of prior restraint comes to court
bearing a heavy presumption against its constitutionality.
In Near v. Minnesota, the exceptions to the prohibition of prior restraint is
enumerated by the Court, thus: When a nation is at war, many things that might
be said in time of peace are such a hindrance to its effort .... No one would question
but that government might prevent actual obstruction to its recruiting service or the
publication of sailing dates of transports or the number or location of troops.... The
security of the community life may be protected against incitements to acts of
violence and the overthrow by force of orderly government.
In SWS v. Comelec, Sec. 1 of RA No. 9006, the Fair Election Act says that surveys
affecting national candidates shall not be published fifteen(15) days before an
election and surveys affecting local candidates shall not be published seven days
before an election. The provision is challenged as violative of freedom of expression.
The Court held that as prior restraint, the rule is presumed to be invalid. The power
of the Comelec over media franchises is limited to ensuring equal opportunity,
time, space and the right to reply as well as to reasonable rates of charges for the
use of media facilities for public information and forums among candidates. Here
the prohibition of speech is direct, absolute and substantial. Nor does the rule pass
the O'Brien test for content related regulation because (1) it suppresses one type of
expression while allowing other types such as editorials, etc. and (2) the restriction
is greater than what is needed to protect government interest because the interest
can be protected by narrower restriction such as subsequent punishment.
In Re: Request for Radio-TV Coverage of the Estrada Trial, the Court held
that the propriety of the Estrada trial involves the weighing out of the constitutional
guarantees of freedom of the press and the right to public information, on the one
hand, and the fundamental rights of the accused, on the other hand, along with the
constitutional power of a court to control its proceedings in ensuring a fair and
impartial trial... With the possibility of losing not only the precious liberty but also
the very life of an accused, it behooves all to make absolutely certain that an
accused receives a verdict solely on the basis of a just and dispassionate
judgment...
The doctrine of freedom of speech was formulated primarily for the protection of
core speech, i.e., speech which communicates political, social or religious ideas.
Commercial speech, however, does not.

Grosjean vs American Press Co.

Burgos vs Chief of Staff

Mutuc vs COMELEC

Sanidad vs COMELEC

There need not be total suppression;

even restriction of circulation constitutes
censorship
the search, padlocking and sealing of the
offices of Metropolitan Mail and We
Forum by military authorities, resulting
in the discontinuance of publication of
the newspapers, was held to be prior
restraint
the COMELEC prohibition against the use
of taped jingles in the mobile units used
in the campaign was held to be
unconstitutional, as it was in the nature
of censorship
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

Iglesia ni Cristo vs CA

the Court upheld the validity of the law

which prohibited, except during the
prescribed election period, the making of
speeches, announcements or
commentaries for or against the election
of any party or candidate for public
office.
JUSTIFICATION: the inordinate
preoccupation of the people with politics
tended toward the neglect of the other
serious needs of the nation and the
pollution of its suffrages.
The Board of Review for Motion Pictures
and Television (BRMPT) has the authority
to review the petitioner's television
program. However, the Board acted with
grave abuse of discretion when it gave
an X-rating to the TV program on the
ground of attacks against another

Primicias vs Fugosos

National Press Club vs COMELEC

Osmea vs COMELEC

Adiong vs COMELEC

religion. Such a classification can be

justified only if there is a showing that
the tv program would create a clear and
present danger of an evil which the State
ought to prevent.
The respondent mayor could only
reasonably regulate, not absolutely
prohibit, the use of public places for the
purpose indicated.
the Supreme Court upheld the validity of
Sec. 11(b), RA 6646, which prohibited
any person making use of the media to
sell or to give free of charge print space
or air time for campaign
or other political purposes except to the
COMELEC. This was held to be within the
power of the COMELEC to supervise the
enjoyment or utilization of franchises for
the operation of
media of communication and
information, for the purpose of ensuring
equal opportunity, time and space, and
the right to reply, as well as uniform
and reasonable rates of charges for the
use of such media facilities.
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.
COMELEC's resolution prohibiting the
posting of decals, and stickers in mobile
units like cars and other moving vehicles
was declared unconstitutional for

Gonzales vs
katigbak

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.
petitioner questioned the classification
of the movie as for adults only. the
petition was dismissed because the
Board did not commit grave abuse of
discretion.

Freedom From Subsequent Punishment

Section 18(1), Art. III. No person shall be detained solely by reason of his
political beliefs and aspirations.
Without this assurance, the individual would hesitate to speak for fear that he
might be held to account for his speech, or that he might be provoking the
vengeance of the officials he may have criticized.
Not absolute; subject to police power and may be regulated (freedom of
expression does not cover ideas offensive to public order)
Right of students to free speech in school premises not absolute
General Rule: a student shall not be expelled or suspended solely on the basis of
articles he has written
Exception: when the article materially disrupts class work or involves substantial
disorder or invasion of rights of others, the school has the right to discipline its
students (in such a case, it may expel or suspend the student)
Tests of valid governmental interference
(criteria in determining the liability of the individual for ideas expressed by him) :
1. Clear and present danger rule

2. Dangerous tendency doctrine

3. Balance of interest test
1. Clear and Present Danger Rule when words are used in such circumstance
and of such nature as to create a clear and present danger that will bring about the
substantive evil that the State has a right to prevent. (As formulated by Justice
Holmes in Schenck v. United States)
Clear causal connection with the danger of the substantive evil arising from the
utterance
Present time element; imminent and immediate danger (the danger must not
only be probable but also inevitable). (Gonzales v. Comelec)
In ABS-CBN v. Comelec, the Comelec banned exit polls in the exercise of its
authority to regulate the holders of media franchises during the lection period. It
contends that an exit poll has the tendency to sow confusion considering the
randomness of selecting interviewees.... However, the Court said that exit polls
constitute an essential part of the freedoms of speech and of the press. Hence, the
Comelec cannot ban totally in the guise of of promoting clean, honest, orderly and
credible elections. The ban does not satisfy the clear and present danger rule
because the evils envisioned are merely speculative.
Terminiello vs City of
Chicago

Primicias vs Fugosos

Navarro vs Villegas

Reyes vs Bagatsing

(speech inside an 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
The respondent mayor could only
reasonably regulate, not absolutely
prohibit, the use of
public places for the purpose indicated.
the condition of Manila at that time did
not justify the mayor's fears. there was
no clear and present danger.
decided in 1947
(compare with Primicias case)
SC sustained respondent mayor's act of
refusing to issue a permit enabling
students to hold a public rally. Mayor
feared the rally would result to public
disorder.
- decided in 1970
the denial of a permit to hold a public

rally was invalid as there was no

showing of the probability of a clear and
present danger of an evil that might
arise as a result of the meeting. The
burden of proving such eventually rests
on the Mayor.
2. Dangerous Tendency Doctrine if the words uttered create a dangerous
tendency of an evil which the State has the right to prevent.(Cabansag v.
Fernandez)
Justice Holmes, critique of this doctrine: Every idea is an incitement. If believed, it
is acted on unless some other belief outweighs it, or some failure of energy stifles
the movement at its birth.
Bayan vs Executive Secretary Ermita

Cabansag vs Fernandez

People vs Perez

(f) the Calibrated Pre-emptive Response

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

3. Balance of Interest Test when particular conduct is regulated in the interest

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

DANGEROUS TENDENCY
RULE

BALANCE OF INTEREST
RULE

Authority is preferred

the issue is resolved in the

light of the peculiar
circumstances obtaining

in each particular case

In Mutuc v. Comelec, the preferred freedom of expression calls all the more the
utmost respect when what may be curtailed is the dissemination of information to
make more meaningful the equally vital right of suffrage.
When faced with border line situations where freedom (of expression) to speak &
freedom to know (to information) are invoked against (vs.) maintaining free and
clean elections- the police, local officials and COMELEC should lean in favor of
freedom.
For in the ultimate analysis, the freedom of the citizen and the States power to
regulate are NOT ANTAGONISTIC.
There can be no free and honest elections if in the efforts to maintain them, the
freedom to speak and the right to know are unduly curtailed.
We examine the limits of regulation. J. Feliciano shows that regulation of election
campaign activity may not pass the test of validity if:
It is too general in its terms
Not limited in time and scope in its application
It if restricts ones expression of belief in a candidate or ones opinion of his or her
qualifications,
If it cuts off the flow of media reporting
If the regulatory measure bears no clear and reasonable nexus with the
constitutionally sanctioned objective.
The regulation strikes at the freedom of an individual to express his preference and,
by displaying it on his car, to convince others to agree with him. A sticker may be
furnished by a candidate but once the car owner agrees to have it placed in his
private vehicle, the expression becomes a statement by the owner, primarily his
own and not of anybody else.
The general rule for a speech to be considered libelous or defamatory is:
Libel = falsity + actual malice (uttered in full knowledge of its falsity or with
reckless disregard)
Exemption: When the subject of the supposed libelous or defamatory material is a
public officer. Defamatory words may be uttered against them and not be
considered libelous. The reason is that 1) they asked for it (they voluntarily thrust
themselves into the public eye and therefore should not be thin-skinned); 2) its a
matter of public interest; and 3) public figures have the opportunity and resources
to rebut whatever is said against them. (Policarpio vs Manila Times); ( New York
Times vs Sullivan)
In New York Times v. Sullivan, The New York Times is protected under the
freedom of speech in publishing paid advertisement, no matter if it contained
erroneous claims and facts. Said publication was not commercial in the sense that
it communicated information, expressed opinion, recited grievances, protested

claimed abuses, and sought a financial support on behalf of a movement. That the
Times was paid for publishing the advertisement is as immaterial as the fact that
newspapers and books are sold.
Newspapers do not forfeit the protection they enjoy under speech freedom just
because they publish paid advertisements. Otherwise, newspapers will be
discouraged from carrying editorial advertisements and so might shut off an
important outlet for the promulgation of information and ideas by persons who do
not themselves have access to publishing facilities.
On errors: Some degree of abuse is inseparable from the proper use of every thing;
and in no instance is this truer than that of the press. Erroneous statement is
inevitable in free debate.
Moreover, criticism of official conduct does not lose its constitutional protection
merely because it effective criticism and hence diminishes their official reputations.
Presence of clear and present danger of substantive evil must be proved. Actual
Malice needs to be proved if a public official wants to recover damages for a
defamatory falsehood relating to his official conduct. Even a false statement may
be deemed to make a valuable contribution to public debate since it brings about
the clearer perception and livelier impression of truth, produced by its collision with
error.
In Gonzales v. Kalaw-Katigbak, Kapit sa Patalim was classified as For Adults Only
by the MTRCB and was suggested to have certain portions cut/ deleted.
Held: MTRCB do not have the power to exercise prior restraint. The power of the
MTRCB is limited to the classification of films.
The test to determine whether a motion picture exceeds the bounds of permissible
exercise of free speech and, therefore should be censored, is the clear and present
danger test.
Assembly and Petition
The right to assemble is not subject to prior restraint and may not be conditioned
upon the prior issuance of a permit or authorization from the government
authorities. However, the right must be exercised in such a way that it will not
prejudice the public welfare. (De la Cruz v. Court of Appeals)
If assembly is to be held at a public place, permit for the use of such place, and not
for the assembly itself, may be validly required. Power of local officials is merely for
regulation and not for prohibition. (Primicias v. Fugoso)
Permit for public assembly is not necessary if meeting is to be held in: a private
place; the campus of a government-owned or operated educational institution; and
freedom park. (B.P. Blg. 880 - The Public Assembly Act of 1985')
In JBL Reyes v. Bagatsing, retired J. JBL Reyes sought a permit from the City of
Manila to hold a march and rally on Oct 26, 1983 2-5pm from Luneta to gates of US

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

Malabanan vs Ramento

Villar vs TIP

Non vs Dames

SC sustained the petitioner's motion

compelling the mayor of Manila to issue
a permit to hold a rally, but changed the
meeting place to Ugarte Field, a private
park
(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.
(several students were barred from reenrollment for participating in
demonstrations) while the Court upheld
the academic freedom of institutions of
higher learning, which includes the right
to set academic standards to determine
under what circumstances failing grades
suffice for expulsion of students, it was
held that this right cannot be utilized to
discriminate against those who exercise
their constitutional rights to peaceful
assembly.
SC abandons its ruling in Alcuaz vs PSBA
(that enrolment of a student is a
semester-to-semester contract and the
school may not be compelled to renew
the contract) upholding the primacy of
freedom of expression, because the
students do

PBM Employees Assoc vs PBM

not shed theur constitutionally protected

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

Tests of a lawful assembly

(1) Purpose Test
ideally, the test should be the purpose for which the assembly is held, regardless
of the auspices under which it is organized
(2) Auspices Test
Evengelista vs Earnshaw: the mayor of Manila prohibited the members of the
Communist Party from holding any kind of meeting, revoking all permits previously
granted by him on the ground that the party had been found (by the fiscal's office)
to be an illegal association.
In People v. Bustos, Bustos and several people sent complaint letters via counsel
against Justice of Peace Roman Punsalan, who charged them with libel.
Held: Bustos and the others were acquitted,
Ratio: the guarantees of free speech and a free press include the right to criticize
judicial conduct. And these people did so in proper channels without undue
publicity, believing they were right.
Right of Association
Section 8, Art. III. The right of the people, including those employed in the
public and private sectors, to form unions, associations, or societies for
purposes not contrary to law shall not be abridged.
The Right of Association is deemed embraced in freedom of expression because the
organization can be used as a vehicle for the expression of views that have a
bearing on public welfare.
SSS Employees Assoc vs CA
Victoriano vs Elizalde Rope Workers'
Union
Occena vs COMELEC

In re Edillon

right to organize does not carry with it

right to strike

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.
Bar integration does not compel the
lawyer to associate with anyone.

Integration does not make a lawyer a

member of any group of which he is not
already a member.
T. OBSCENITY CASES
US vs Kottinger

People vs Go Pin

Pita vs CA

Miller vs California

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
Accused was convicted for exhibiting
nude
paintings and pictures, notwithstanding
his claim
that he had done so in the interest of art.
SC,
noting that he has charged admission
fees to the
exhibition, held that his purpose was
commercial,
not merely artistic.
SC declared that the determination of
what is
obscene is a judicial function.
Test of Obscenity:
whether the average person, applying
contemporary community standards,
would
find that the work, taken as a whole,
appeals to the prurient interest
whether the work depicts, in a patently
offensive way, sexual conduct
specifically
defined by the applicable law
whether the work, taken as a whole,
lacks
serious literary, artistic, political or
scientific
value
Justice Douglas, dissent: I do not think
we, the

judges, were ever given the

constitutional power to make definitions
of obscenity. Obscenity is a
hodgepodge.
- The Courts should not apply a national standard but the standard of the
community in which the material is being tested.
In Reno v. ACLU, Communications Decency Act seek to protect minors from
obscenity on the internet.
Held: overbroad, vague, unconstitutional.
Notes: Sexual expression which is indecent but not obscene is protected by the
First Amendment.
The internet is not an invasive medium because it requires a series of affirmative
steps more deliberate and directed than merely turning a dial (tv or radio).
There is no effective way to determine the identity or the age of a user who is
accessing material through email, mail exploders, newsgroups or chat rooms.
The Community Standard as applied to the internet means that any communication
available to a nationwide audience will be judged by the standards of the
community most likely to be offended by the message. The effect of CDA is such
that when a site is blocked for being indecent or patently offensive the
remaining content even if not indecent cannot be viewed anymore. Imposition of
requirements (adult identification number or credit card) would bar adults who do
not have a credit card and lack the resources to obtain one from accessing any
blocked material. It burdens communication among adults.
The CDA is punitive, a criminal statute. The CDA is a content- based blanket
restriction on speech, and as such, cannot be properly analyzed as a form of time,
place and manner regulation.
The CDA was replaced with Child Online Protection Act, 1. The scope had been
limited to material displayed only on the world wide web. Chat and email were not
included. The classification of content was limited as harmful to minors using the
Miller V California Test. So, it was upheld by the Supreme Court.
Notes: the Courts Jurisprudence teaches that it is the publishers responsibility to
abide by that communitys standards.
The fact that distributors of allegedly obscene materials may be subjected to
varying community standards in the various federal judicial districts into which they
transmit the materials does not render a federal statute unconstitutional.
- Criticism of Official Conduct
Lagunzad vs Sotto Vda. de Gonzales

the Court granted the petition to restrain

the public exhibition of the movie
Moises Padilla Story, because it
contained fictionalized embellishments.

Ayer Productions vs Judge Capulong

US vs Bustos

People vs Alarcon

In re Jurado

Being a public figure does not destroy

one's right to privacy.
the tribunal upheld the primacy of
freedom of
expression over Enrile's right to
privacy, because
Enrile was a public figure and a public
figure's right
to privacy is narrower than that of an
ordinary
citizen. Besides, the movie Four Days of
Revolution (sabi ni Cruz) / A Dangerous
Life
(sabi ni Nachura) / The Four Day
Revolution
(sabi sa case) would not be historically
faithful
without including therein the
participation of Enrile in the EDSA
revolution.
SC compared criticism of official conduct
to a
scalpel that relieves the abscesses of
officialdom
newspaper publications tending to
impede,
obstruct, embarrass or influence the
courts in
administering justice in a pending suit or
proceeding constitutes criminal
contempt which is
summarily punishable by the courts.
a publication that tends to impede,
embarrass or
obstruct the court and constitutes a
clear and
present danger to the administration of
justice is
not protected by the guarantee of press
freedom
and is punishable by 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

In re Tulfo

In re Laureta

Zaldivar vs
Sandiganbayan

a senator was punished for contempt for

having
attacked a decision of SC which he called
incompetent and narrow-minded, and
announcing
that he would file a bill for its
reorganization
Tulfo's Sangkatutak na Bobo column
was held
contumacious. Freedom of the press is
subordinate to the decision, authority
and integrity of the judiciary and the
proper administration of justice.
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
a member of the Bar who imputed
charges of
improper influence, corruption and other
misdeeds to members of the Supreme
Court was suspended from the practice
of law as neither the right of free
speech nor the right to engage in
political activities can be so construed or
extended as to permit any such liberties
to a member of the bar.

U. FREEDOM OF RELIGION
Section 5, Art. III. No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof. The free exercise and
enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required for
the exercise of civil or political rights.
Religion defined
any specific system of belief, worship, conduct, etc., often involving a code of
ethics and philosophy (defined by Cruz)

 In Aglipay vs Ruiz religion is defined as a profession of faith to an active power

that binds and elevates man to his Creator.
Two Guarantees Contained Section 5, Art. III of the Constitution
(1) Non-establishment clause
(2) Free exercise of religious profession and worship
1. Non-establishment Clause
reinforces Sec. 6, Art. II on the separation of church and State
other provisions which support this: Sec 2(5), Art. IX-C [a religious sect or
denomination cannot be registered as a political party], Sec 5(2), Art. VI [no sectoral
representative from the religious sector], and Sec 29 (2), Art. VI [prohibition against
the use of public money or property for the benefit of any religion, or of any priest,
minister or ecclsiastic], Sec. 28 (3), Art. VI [exemption from taxation of properties
actually, directly and exclusively used for religious purposes, Sec 4(2), Art XIV
[citizenship requirement of
ownership of educational institutions except those owned by religious groups], Sec
29(2), Art VI [appropriation allowed where the minister is employed in the armed
forces, penal institution or government-owned orphanage or leprosarium]
Scope: The State
(a) cannot set up a church;
(b) cannot pass laws which aid one religion, all religions or prefer one over another;
(c) cannot influence a person to go to or remain away from church against his will;
nor
(d) force him to profess a belief or disbelief in any religion.
Rationale:
to delineate boundaries between the two institutions; and
to avoid encroachment by one against the other.

A union of Church and State would either:

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

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

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

recitation by students in public schools

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

Intramural Religious Dispute outside the jurisdiction of the secular authorities

Gonzales vs Archbishop of Manila

Fonacier v CA

where a civil right depends upon some

matter pertaining to ecclesiastical
affairs, the civil tribunal tries the civil
right and nothing more.
where the dispute involves the property
rights of the religious group, or the
relations of the members where the
property rights are involved, the civil
courts may assume jurisdiction.

2. Free Exercise Clause

Two Aspects of Free Exercise Clause:
1. Freedom to Believe
(a) absolute
(b) includes not to believe
(c) everyone has a right to his beliefs and he may not be called to account because
he cannot prove what he believes
2. Freedom to Act According to One's Beliefs
(a) happens when the individual externalizes his beliefs in acts or omissions
(b) subject to regulation; can be enjoyed only with proper regard to rights of others
(c) Justice Frankfurter: the constitutional provision on religious freedom terminated
disabilities, it did not create new privileges... its essence is freedom from conformity
to religious dogma, not freedom from conformity to law because of religious dogma
German vs Barangan

Ebralinag vs division
Superintendent of Schools of
Cebu

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

People vs Zosa

Victoriano vs Elizalde Rope Workers

Union

American Bible Society vs City of Manila

Tolentino vs Sec. of Finance

take part in a flag ceremony when it is

against
their religious beliefs will violate their
religious
freedom.
invocation of religious scruples in order
to avoid military service was brushed
aside by the SC
SC upheld the validity of RA 3350,
exempting
members of a religious sect from being
compelled to join a labor union
the constitutional guarantee of free
exercise
carries with it the right to disseminate
information, and any restraint of such
right can be justified only on the ground
that there is a clear and present danger
of an evil which the State has the right
to prevent; Hence, City ordinance
imposing license fees to on sale is
inapplicable to the society
the free exercise clause does not prohibit
imposing a generally applicable sales
and use tax on the sale of religious
materials; the registration fee is not
imposed for the exercise of a privilege,
but only for the purpose of defraying
part of the cost of registration

Compelling State Interest test [Estrada vs Escritor]

the constitution's religion clause's prescribe not a strict bu abenevolent neutrality
(which recognizes that government mustpursue its secular goals and interests, but
at the same time, strive to uphold religious liberty to the greatest extent possible
within flexible constitutional limits
benevolent neutrality could allow for accomodation morality based on religion
provided it does not offend the compelling state interest test.
two steps (as regards the test):
inquire whether respondent's right to religious freedom has been burdened;
and
ascertain respondent's sincerity in her religious belief.

 In Centeno vs Villalon-Pornillos, the Court held that solicitiations for religious

purposes requires not a prior permit from DSWD as it is not included in solicitations
for charitable or public welfare purposes.
Religious Tests
Purpose: to stop government's clandestine attempts to prevent a person from
exercising his civil of political rights because of his religious beliefs.
In Pamil v. Teleron, Sec. 2175 of the Revised Adminsitrative Code is questioned
whether or not it is consistent with the religious clause of the Constitution. Said
Code disqualifies an ecclesiastic from being elected or appointed to a municipal
office. Seven Justices voted to consider this a prohibited religious test. Five
justices said it is not a religious test but a safeguard against the constant threat of
union of Church and State that has marked the Philippine history. (Hence, since the
majority vote needed under the 1973 Constitution to nullify a statute was not
reached, thedisqualification remains enforceable.)
People vs Zosa

invocation of religious scruples in order

to avoid military service was brushed
aside by the SC

V. RIGHT TO TRAVEL
Section 6, Art. III. The liberty of abode and of changing the same within
the limits prescribed by law shall not be impaired except upon lawful
order of the court. Neither shall the right to travel be impaired except in
the interest of national security, public safety, or public health, as may be
provided by law.
Liberty Guaranteed by Sec. 6 Art. III
1. freedom to choose and change one's place of abode; and
2. freedom to travel both within the country and outside
Limitations
Liberty of Abode upon lawful order of the court
Right to Travel national security, public safety or public health as may be
provided by law
Caunca vs Salazar 82 Phil 851

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

Rubi vs Provincial Board of Mindoro 1919

Villavicencio vs Lukban 1919

Salonga vs Hermoso 97 SCRA 121

Lorenzo vs Dir. of Health1927

Manotok vs CA 1986

Marcos vs Manglapus 1989

Philippine Association of Service

Exporters vs Drilon

human freedom.
Human dignity and freedom are
essentially spiritual inseparable from
the idea of eternal. Money, power, etc.
belong to the ephemeral and perishable.
The respondents were justified in
requiring the members of certain nonChristian tribes to reside in a
reservation, for their better education,
advancement and protection. The
measure was a legitimate exercise of
police power.
Prostitutes, despite being in a sense
lepers, are not
chattels but Philippine citizens, protected
by the same constitutional guarantee of
freedom of abode. They may not be
compelled to change their domicile in
the absence of a law allowing such.
the case became moot and academic
when the permit to travel abroad was
issued before the case could be heard.
Laws for the segregation of lepers have
been provided the world over and is
supported by high scientific authority.
Such segregation is premised on the
duty to protect public health.
Bail posted in a criminal case, is a valid
restriction on the right to travel. By its
nature, it may serve as a prohibition on
an accused from leaving the jurisdiction
of the Philippines where orders of
Philippine courts would have no binding
force.
The liberty of abode and the right to
travel includes the right to leave, reside
and travel within ones country but it
does not include the right to return to
ones country.
NOTE: Court warned that this case
should not create a precedent because
Marcos was a class in himself.
Right to travel may be impaired in the
interest of national security, public

1988

health or public order, as may be

provided by law.
An order temporarily suspending the
deployment of overseas workers is
constitutional for having been issued in
the interest of the safety of OFWs, as
provided by the Labor Code.

by PORFERIO JR. and MELFA SALIDAGA

CODES AND NOTES ON PUBLIC INTERNATIONAL LAW

NOTES ON PUBLIC INTERNATIONAL LAW

CHAPTER 1
GENERAL PRINCIPLES
Nature and Scope

Public International Law It is the body of rules and principles that are
recognized as legally binding and which govern the relations of states and other
entities invested with international legal personality. Formerly known as law of
nations coined by Jeremy Bentham in 1789.
Three Major Parts of Public International Law
1. Laws of Peace normal relations between states in the absence of war.
2. Laws of War relations between hostile or belligerent states during wartime.
3. Laws of Neutrality relations between a non-participant state and a participant
state during wartime. This also refers to the relations among non-participating
states.
Sources of Public International Law
1. International conventions
2. International custom
3. The general principles of law recognized by civilized nations. (e.g. prescription,
pacta sunt servanda, and estoppel).
Distinction of Public International Law with Municipal Law
Municipal Law
Public International Law
1. Issued by a political superior for
1. Not imposed upon but simply adopted
observance by those under its authority; by states as a common rule of action
among themselves;
2. Consists mainly of enactments from
2. derived not from any particular
the law-making authority of each state;
legislation but from such sources as
international customs, international
conventions and the general principles
of law;
3. Regulates the relations of individuals
3. Applies to the relations inter se of
among themselves or with their own
states and other international persons;
states;
4. Violations are redressed through local
4. Questions are resolved through stateadministrative and judicial processes;
to-state transactions ranging from
and,
peaceful methods like negotiation and
arbitration to the hostile arbitrament of
force like reprisals and even war; and,
5. breaches generally entail only
5. responsibility of infractions is usually
individual responsibility.
collective in the sense that it attaches
directly to the state and not to its
nationals.
Public International Law in Relation to Municipal Law
In the paquete Habana, Justice Gray said: the law of nations, although not
specially adopted by the Constitution or any municipal act, is essentially a part of
the law of the land.

Doctrine of Incorporation the rules of international law form part of the law of
the land and no further legislative action is needed to make such rules applicable in
the domestic sphere. (Sec. of Justice v. Lantion GRN 139465, Jan. 18, 2000)
This doctrine is followed in the Philippines as embodied in Art. II, Sec. 2 of the 1987
Constitution which provides that: The Philippinesadopts the generally accepted
principles of international law as part of the law of the land However, no primacy
is implied.
It should be presumed that municipal law is always enacted by each state with due
regard for and never in defiance of the generally accepted principles of international
law. (Co Kim Chan v. Valdez Tan Keh).
It is a settled principle of international law that a sovereign cannot be permitted
toset up his own municipal law as a bar to a claim by foreign sovereign for a wrong
done to the latter's subject. (US v Guatemala).
Constitution v. Treaty
Generally, the treaty is rejected in the local forum but is upheld by international
tribunals as ademandable obligation of the signatories under the principle of pacta
sunt servanda.
Pacta Sunt Servanda international agreements must be performed in Good
Faith. A treaty engagement is not a mere moral obligation but creates a legally
binding obligation on the parties. A state which has contracted a valid international
obligation is bound to make in its legislation such modifications as may be
necessary to ensure the fulfillment of the obligations undertaken.
The Philippine Constitution however contains provisions empowering the
judiciary to annul treaties thereby establishing the primacy of the local
law over the international agreement.
Art. X, Sec. 2(2) provides that all cases involving the constitutionality of any treaty,
executive or law shall be heard and decided by the Supreme Court en banc, and no
treaty, executive agreement or law may be declared unconstitutional without the
concurrence of ten justices.
The Constitution authorizes the nullification of a treaty not only when it conflicts
with the Constitution but also when it runs counter to an act of Congress.
(Gonzales v. Hechanova).
Basis of Public International Law
Three theories on this matter:
1. The Naturalist under this theory, there is a natural and universal principle of
right and wrong, independent of any mutual intercource or compact, which is
supposed to be discovered and recognized by every individual through the use of
his reason and his conscience.

2. The Positivist under this theory, the binding force of international law is
derived from the agreement of sovereign states to be bound by it. It is not a law of
subordination but of coordination.
3. The Eclectics or Groatians this theory offers both the law of nature and the
consent of states as the basis of international law. It contends that the system of
international law is based on the dictate of right reason as well as the practice of
states.
Sanctions of Public International Law
Sanctions the compulsive force of reciprocal advantage and fear of retaliation.
1. The inherent reasonableness of international law that its observance will redound
to the welfare of the whole society of nations;
2. The normal habits of obedience ingrained in the nature of man as a social being;
3. To project an agreeable public image in order to maintain the goodwill and
favorable regard of the rest of the family of nations;
4. The constant and reasonable fear that violations of international law might visit
upon the culprit the retaliation of other states; and,
5. The machinery of the United Nations which proves to be an effective deterrent to
international disputes caused by disregard of the law of nations.
Enforcement of Public International Law
States are able to enforce international law among each other through international
organizations or regional groups such as the United Nations and the Organization of
American States. These bodies may adopt measures as may be necessary to
compel compliance with international obligations or vindicate the wrong committed.
Functions of Public International Law
1. To establish peace and order in the community of nations and to prevent the
employment of force, including war, in all international relations;
2. To promote world friendship by levelling the barriers, as of color or creed;
3. To encourage and ensure greater international cooperation in the solution of
certain common problems of a political, economic, cultural or humanitarian
character; and,
4. To provide for the orderly management of the relations of states on the basis of
the substantive rules they have agreed to observe as members of the international
community.
Distinctions with Other Concepts

International morality or ethics embodies those principles which govern the

relations of states from the higher standpoint of conscience, morality, justice and
humanity.
International diplomacy relates to the objects of national or international policy
and the conduct of foreign affairs or international relations.
International administrative law that body of laws and regulations created by
the action of international conferences or commissions which regulate the relations
and activities of national and international agencies with respect to those material
and intellectual interests which have received an authoritative universal
recognition.
CHAPTER 2
THE INTERNATIONAL COMMUNITY
International Community the body of juridical entities which are governed by
the law of nations.
Composition of International community:
1. State
2. United Nations
3. the Vatican City
4. Colonies and dependencies
5. Mandates and trust territories
6. International administrative bodies
7. Belligerent communities
8. Individuals
1. States
State a group of people living together in a definite territory under an
independent government organized for political ends and capable of entering into
international relations. Some writers no loner recognized the distinction between
state and nation, pointing out that these two terms are now used in an identical
sense. Nevertheless, a respectable number of jurists still hold that the state is a
legal concept, the nation is only a racial or ethnic concept.
Elements of A State
1. People
2. Territory
3. Government
4. Sovereignty
A. People the inhabitants of the State.
People must be numerous enough to be self-sufficing and to defend themselves,
and small enough to be easily administered and sustained. They are aggregate of
individuals of both sexes who live together as a community despite racial or cultural
differences.

 Groups of people which cannot comprise a State:

Amazons not of both sexes; cannot perpetuate themselves
Pirates considered as outside the pale of law, treated as an enemy of all
mankind; hostis humani generis
B. Territory the fixed portion of the surface of the earth inhabited by the people
of the State.
The size is irrelevant. (San Marino v. China). But, practically, must not be too big
as to be difficult to administer and defend; but must not be too small as to unable to
provide for peoples needs.
C. Government the agency or instrumentality through which the will of the State
is formulated, expressed and realized.
D. Sovereignty the power to direct its own external affairs without interference
or dictation from other states.
Classification of States
1. Independent states having full international personality.
Sovereignty connotes freedom in the direction by the state in its own
internal and external
affairs.
However international law is concerned only with this freedom in so far as it
relates to external affairs; hence, a state which is not subject to dictation
from others in this respect is known as an independent state.
2. Dependent states exemplified by the suzerainty and the protectorate and are
so called because they do not have full control of their external relations.
Dependent states fall into two general categories: the protectorate and the
suzerainty. However, there is no unanimity as to their basic distinctions in terms of
measure of control over its external affairs.
3. Neutralized states an independent state, whether it be simple or composite,
may be neutralized through agreement with other states by virtue of which the
latter will guarantee its integrity and independence provided it refrains from taking
any act that will involve it in war or other hostile activity except for defensive
purposes.
Classification or Types of An Independent State
1. Simple state one which is placed under a single and centralized government
exercising power over both its internal and external affairs (e.g. Philippines and
Holland).
2. Composite state one which consists two or more states, each with its own
separate government but bound under central authority exercising, to a greater or
less degree, control over their external relations.
Kinds or Categories of Composite States:
a) Real Union created when two or more states are merged under a unified
authority so that they form a single international person through which they act as
one entity (e.g. Norway and Sweden from 18154 to 1905).

b) Federal Union (or a federation) is a combination of two or more sovereign

states which upon merger cease to be states, resulting in the creation of a new
state with full international personality to represent them in their external relations
as well as a certain degree of power over the domestic affairs and their inhabitants
(e.g. German Empire under the Constitution of 1871).
c) Confederation an organization of states which retain their internal sovereignty
and, to some degree, their external sovereignty, while delegating to the collective
body power to represent them as a whole for certain limited and specified purposes
(e.g. German states in 1866 until they eventually developed into a more closely-knit
federation).
d) Personal Union comes into being when two or more independent states are
brought together under the rule of the same monarch, who nevertheless does not
constitute one international person for the purpose of representing any or all of
them. Strictly speaking therefore, the personal union is not a composite state
because no new international person is created to represent it in international
relations (e.g. Belgium and the Former Congo Free State from 1885 to 1905).
2. The United Nations
Although the United Nations is not a state or a super-state but a mere organization
of states, it is regarded as an international person for certain
purposes.
It enjoys certain privileges and immunities, such as non-suability,
inviolability of its premises and archives, and exemption from taxation.
It can assert a diplomatic claim on behalf of its officials, and treaties may
also be concluded by it through the General Assembly, the Security Council, and
the Economic and Social Council.
Trust territories are supposed to be under its residual sovereignty.
3. The Vatican City
In 1928, Italy and the Vatican concluded the Lateran Treaty for the purpose of
assuring to the Holy See absolute and visible independence and of guaranteeing to
it absolute and indisputable sovereignty in the field of international relations.
4. Colonies and Dependencies
From the viewpoint of international law, a colony or a dependency is part and parcel
of the parent state, through which all its external relations are transacted with other
states.
Nevertheless, such entities have been allowed on occasion to participate in
their own right in international undertakings and granted practically the

statusof a sovereign state. It is when acting in this capacity that colonies and
dependencies are considered international persons.
5. Mandates and Trust Territories
The system of mandates was established after the first World War in order to avoid
outright annexation of the underdeveloped territories taken from the defeated
powers and to place their administration under some form of international
supervision.
Three Kinds of Trust Territories:
1. Those held under mandate under the League of Nations;
2. Those territories detached from the defeated states after World War II; and,
3. Those voluntarily placed under the system of the states responsible for their
administration.
These territories enjoy certain rights directly available to them under the United
Nations Charter that vest them with a degree of international personality. They are
not however sovereign.
6. Belligerent Communities
When a portion of the population rises up in arms against the legitimate
government of the state, and such conflict widens and aggravates, it may become
necessary to accord the rebels recognition of belligerency.
For purposes of the conflict, and pending determination of whether or not the
belligerent community should be fully recognized as a state, it is treated as an
international person and becomes directly subject to the laws of war and neutrality.
7. International Administrative Bodies
Certain administrative bodies created by agreement among states may be vested
with international personality (e.g. International Labor Organization, World Health
Organization).
Two Requisites for International Administrative Bodies to be Vested with
International Personality:
1. Their purposes are mainly non-political; and that
2. They are autonomous, i.e. not subject to the control of any state.
8. Individuals
Traditional concept regards the individual only as an object of international law who
can act only through the instrumentality of his own state in matters involving other
states.

Of late, however, the view has grown among many writers that the individual is not
merely an object but a subject of international law. One argument is that the
individual is the basic unit of society, national and international, and must therefore
ultimately governed by the laws of this society.
CHAPTER 3
THE UNITED NATIONS
The United Nations emerged out of the travail of World war II as symbol of man's
undismayed determination to establish for all nations a rule of law that would
forever banish the terrible holocaust of war in the so9lution of international
disputes.
The first formal step toward the creation of the United Nations was the Moscow
Declaration, signed by the representatives of China, the Soviet Union, the United
Kingdom, and the United States.
The U.N. Charter
The United Nations Charter a lengthy document consisting of 111 articles
besides the preamble and the concluding provisions. It also includes the Statute of
the International Court of Justice which is annexed to and made an integral part of
it.
In one sense, the Charter maybe considered a treaty because it derives its
binding force from the agreement of the parties to it. In another sense, it may
be regarded as a constitution in so far as it provides for the organization and
operations of the different organs of the United Nations and for the adoption of
any change in its provisions through formal process of amendment.
The Charter is intended to apply not only to the members of the Organization but
also to non-member states so far as may be necessary for the maintenance of
international peace and security.
Amendments to the Charter shall come into force by a vote of two-thirds of the
members of the General Assembly and ratified in accordance with their respective
constitutional processes by two-thirds of the Members of the United Nations.
The Preamble to the Charter
The preamble introduces the Charter and sets the common intentions that moved
the original members to unite their will and efforts to achieve their common
purposes.
Purposes
The purposes of the Charter are expressed in Article 1 as follows:
1. Maintain international peace and security;

2. Develop friendly relations among nations;

3. Achieve international cooperation in solving international problems;
4. Be a center for harmonizing the actions of nations in the attainment of these
common ends.
Principles
The Seven Cardinal Principles ( as enumerated in Article 2):
1. The Organization is based on the principle of the sovereign equality of all its
members;
2. All Members shall fulfill in good faith the obligations assumed by them in
accordance with the present Charter;
3. All Members shall settle their international disputes by peaceful means;
4. All Members shall refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any
state;
5. All Members shall give the United Nations every assistance in any action it
takes in accordance with the present Charter;
6. The Organization shall ensure that states which are not Members of the
United Nations act in accordance with these Principles; and,
7. Nothing contained in the present Charter shall authorize the United Nations
to intervene in matters which are essentially within the domestic
jurisdiction of any state.
Membership
Two Kinds of members in the United Nations
1. Original those which, having participated in the United Nations Conference on
International Organization at San Francisco or having previously signed the
Declaration by the United Nations of January 1, 1942, signed and ratified the
Charter of the United Nations.
Interestingly, the Philippines was included as original member although it
was not yet a state at the time.
2. Elective
In addition to the original members, other members may be admitted to the United
Nations by decision of the General Assembly upon the favorable recommendation of
the Security Council.
Membership Qualifications to the United Nations
1. It must be a state;
2. It must be peace-loving;

3. It must accept the obligations of the Charter;

4. It must be able to carry out these obligations; and,
5. It must be willing to carry out these obligations;
Suspension of Members
As in the case of admission, suspension is effected by two-thirds of those present
and voting in General Assembly upon the favorable recommendation of at least nine
members of the Security Council, including all its permanent members.
The suspension may be lifted alone by the Security Council, also by a qualified
majority vote. Nationals of the suspended member may, however, continue serving
in the Secretariat and the International Court of Justice as they are regarded as
international officials or civil servants acting for the Organization itself.
Since suspension affects only its rights and privileges, the member is still subject to
the discharge of its obligations under the Charter.
Expulsion of Members
A member which has persistently violated the principles contained in the Charter
may be expelled by two-0thirds of those present and voting in the General
Assembly upon the recommendation of the Security Council by a qualified majority
vote.
Withdrawal of Members
No provision on withdrawal of membership was included in the Charter because
of the fear that it might encourage successive withdrawals that would weaken the
Organization.

Organs of the United Nations

1.
2.
3.
4.
5.
6.

The
The
The
The
The
The

General Assembly
Security Council
Economic and Social Council
Trusteeship Council
International Court of Justice
Secretariat

A. The General Assembly

It consists of all the members of the Organization, each of which is entitled to send
not more than five representatives and five alternates as well as such technical staff
as it may need.
Functions of the General Assembly
Deliberative - such as initiating studies and making recommendations;

 Supervisory such as receiving and considering annual and special

reports from the other
organs;
Financial such as consideration and approval of budget of the
Organization;
Elective such as the election of non-permanent members of the Security
Council;
Constituent such as the admission of members and the amendment of
the Charter.
B. The Security Council
The key organ of the United Nations of international peace and security is the
Security Council.
It consists of five permanent members and ten elective members. The elective
members are elected for two-year terms.
C. The Economic and Social Council
The responsibility for the promotion of international economic and social
cooperation is vested in the General Assembly, and under its authority, the
Economic and Social Council. Specifically these organs should exert efforts toward:
higher standards of living, full employment, and conditions of economic and
social progress and development;
solutions of international economic, social, health and related problems,
and international, cultural and educational cooperation; and,
universal respect for human rights and fundamental freedoms for all
without distinction as to race, sex, language or religion.
D. The Trusteeship Council
It is the organ charged with the duty of assisting the Security Council and the
General Assembly in the administration of the international trusteeship system.

E. The International Court of Justice

It functions in accordance with the Statute. All members of the Organization are ipso
facto parties to the Statute. A non-member may become a party on conditions to be
determined in each case by the General Assembly upon the recommendation of the
security Council.
The principal functions of the Court are:
to decide contentious cases; and,
render advisory opinions.
The jurisdiction of the Court is based on the consent of the parties as manifested
under the optional jurisdiction clause in Article 36 of the Statute. Advisory
opinions may be given by the Court upon request of the General

Assembly or the Security Council, as well as other organs of the United Nations,
when authorized by the General Assembly, on legal questions arising within the
scope of their activities.
F. The Secretariat
It is the chief administrative organ of the United Nations which is headed by the
Secretary-General.
The Secretary-General is chosen by the General Assembly upon the
recommendation of the Security Council. His term is fixed at five years by resolution
of the general Assembly, and he may be re-elected.
The Secretary-General is the highest representative of the United Nations and is
authorized to act in its behalf. When acting in this capacity, he is entitled to full
diplomatic immunities and privileges which only the Security Council may waive.
The Secretary-General also acts as secretary in all meetings of the General
Assembly, the Security Council, the Economic and Social Council and the
Trusteeship Council and performs such other functions as may be assigned to him
by these organs.
In addition, he prepares the budget of the United Nations for submission to the
General Assembly, provides technical facilities to the different organs of the
Organization, and in general coordinates its vast administrative machinery.

CHAPTER 4
THE CONCEPT OF THE STATE
As the basic unit of the international community, the state is the principal subject of
international law.
Creation of the State
Four Essential Elements of the State
1. People
2. Territory
3. Government
4. Sovereignty
Methods by which Status of A State is Acquired
1. Revolution
2. Unification
3. Secession

4. Assertion of independence
5. AgreementsAttainment of civilization
The Principle of State Continuity
From the moment of its creation, the state cointinues as a juristic being
notwithstanding changes in its circumstances, provided only that they do not result
in loss of any of its essential elements.
Extinction of the State
Nevertheless, it is error to suppose that a state is immortal. There are instances
when a radical impairment or actual loss of one or more of the essential elements of
the state will result in its extinction.
Succession of States
State succession takes place when one state assumes the rights and some of
the obligations of another because of certain changes in the condition of the latter.
Universal Succession when a state is annexed to another state or is totally
dismembered or merges with another state to form a new state.
Partial Succession when a portion of the territory of a state secedes or is ceded
to another or when an independent state becomes a protectorate or a suzerainty or
when a dependent state acquires full sovereignty.
Consequences of State Succession
The allegiance of the inhabitants of the predecessor state in the territory affected
is transferred to the successor state.
The political laws of the former sovereign are automatically abrogated and may be
restored only by a positive act on the part of the new sovereign.
Treaties of a political and even commercial nature are also discontinued, but the
successor state is bound by treaties dealing with local rights and duties.
All rights of the predecessor state are inherited by the successor state but this is
not so where the liabilities are concerned.

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

The rule is that where the new government was organized by virtue of a
constitutional reform, the obligations of the replaced government are also
completely assumed by the former.
Conversely, where the new government was established through violence, it may
lawfully reject the purely personal or political obligations of the predecessor
government but not those contracted by it in the ordinary course of official
business.
CHAPTER 5
RECOGNITION
Even if an entity has already acquired the elements of international personality, it is
not for this reason alone automatically entitled to membership in the family of
nations. Its admission thereto is dependent on:
as reflective of the majority theory, the acknowledgment of its status by
those already within the fold and their willingness to enter into relations with
it as a subject of international law (declaratory);
as reflective of the minority theory, the acknowledgment is mandatory and
legal and may be demanded as a matter of right by any entity that can
establish its possession of the four essential elements of a state
(constitutive).
Objects of Recognition
Recognition may be extended to:
a. State, which is generally held to be irrevocable and imports the recognition of its
government;
b. Government, which may be withdrawn and does not necessarily signify the
existence of a state as the government may be that of a mere colony; and,
c. Belligerency, which does not produce the same effects as the recognition of
states and governments because the rebels are accorded international personality
only in connection with the hostilities they are waging.
Kinds of Recognition
1. Express recognition may be verbal or in writing;
2. Implied recognition when the recognizing state enters into official intercourse
with the new member by exchanging diplomatic representatives with it, etc.

The Act of Recognition is Indicative of the Following Intentions

1. To treat with the new state as such;
2. To accept the new government as having authority to represent the state;

3. To recognize in the case of insurgents that they are entitled to exercise

belligerent rights.
Recognition of State
The recognition of a new state is the free act by which one or more states
acknowledge the existence on a definite territory of a human society politically
organized, independent of any other existing state, and capable of observing the
obligations of international law, and by which they manifest therefore their intention
to consider it a member of the international community.
Recognition of Governments
The recognition of the new government of a state which has been already
recognized is the free act by which one or several states acknowledge that a person
or a group of persons are capable of binding the state which they claim to represent
and witness their intention to enter into relations with them.
Two Kinds of Governments
1. De Jure
2. De facto
Three Kinds of De Facto Government
1. That which is established by the inhabitants who rise in revolt against and depose
the legitimate regime;
2. That which is established in the course of war by the invading forces of one
belligerent in the territory of other belligerent, the government of which is also
displaced; and,
3. That which is established by the inhabitants of a state who secede therefrom
without overthrowing its government.
Tobar or Wilson Principle recognition shall not be extended to any government
established by revolution, civil war, coup d'etat or other forms of internal violence
until the freely elected representatives of the people have organized a constitutional
government.
In any event, the practice of most states now is to extend recognition to a new
government only if it is shown that it has control of the administrative machinery of
the state with popular acquiescence and that it is willing to comply with its
international obligations.
Distinctions between the two kinds of recognition
De Jure
Relatively permanent;

De Facto
Provisional;

 Vests title in the government to its

properties abroad;
Brings about full diplomatic relations.

Does not;
Limited to certain juridical relations.

Effects of Recognition of State and Governments

1. Full diplomatic relations are established except where the government recognized
is de facto;
2. The recognized state or government acquired right to sue in the courts of the
recognizing state.
It is error, however, to suppose that non-suability of the foreign state or government
is also an effect of recognition, as this is an attribute it can claim whether or not it
has been recognized by the local state. The applicable rule is the doctrine of state
immunity. It has been held that to cite a foreign sovereign
in the municipal courts of another state would be an insult which he is entitled to
resent and would certainly vex the peace of nations.
3. The recognized state or government has a right to the possession of the
properties of its predecessor in the territory of the recognizing state.
4. All acts of the recognized state or government are validated retroactively,
preventing the recognizing state from passing upon their legality in its own courts.
Recognition of Belligerency
A belligerency exists when the inhabitants of a state rise up in arms for the purpose
of overthrowing the legitimate government.
Conditions for A Belligerent Community to Be Recognized
1. There must be an organized civil government directing the rebel forces;
2. The rebels must occupy a substantial portion of the territory of the state;
3. The conflict between the legitimate government and the rebels must be serious,
making the outcome uncertain; and,
4. The rebels must be willing and able to observe the laws of war.
Consequences of Recognition of Belligerency
Upon recognition by the parents state, the belligerent community is considered a
separate state for purposes of the conflict it is waging against the legitimate
government. Their relations with each other will, thenceforth and for the duration of
the hostilities, be governed by the laws of war, and their relations with other states
will be subject to the laws of neutrality.

CHAPTER 6
THE RIGHT OF EXISTENCE AND SELF-DEFENSE
Once a state comes into being, it is invested with certain rights described as
fundamental.
Fundamental Rights of A State
1.
2.
3.
4.
5.

The
The
The
The
The

right
right
right
right
right

to national existence and national defense;

of sovereignty and independence;
of equality;
of property and jurisdiction; and,
of legation or diplomatic intercourse.

The most important of these rights is the right of existence and self-defense,
because all other rights are supposed to flow or be derived from it. By virtue of this
right, the state may take measures, including the use of force, as may be necessary
to counteract any danger to its existence.
Requisites of Right
In Art. 51 of the Charter of the United Nations, it is provided that
Nothing in the present Charter shall impair the inherent right of individual or
collective self-defense if any armed attack occurs against a member of the
United Nations, until the Security Council has taken the measures necessary
for the maintenance of international peace and security. xxx
The presence of an armed attack to justify the exercise of the right of the selfdefense under this article suggests that forcible measures may be taken by a state
only in the face of necessity of self-defense, instant, overwhelming and leaving no
choice of means and no moment for deliberation.
Regional Arrangements
Collective self-defense is recognized not only in Article 51 of the Charter of the
United Nations but also in Art. VII on Regional Arrangements ... provided that such
arrangements or agencies and their activities are consistent with the Purposes and
Principles of the United Nations (Art. 52, Sec. 1 of the Charter of the United
Nations).

The Balance of Power

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

The maintenance of this balance of power has in a very real way contributed to
international peace although, being an armed peace, it is far from the ideal
sought in the articles of faith of the United Nations.
Aggression Defined
Definition of agression as adopted by the U.N. General Assembly on December 14,
1974:
Article 1
Aggression is the use of armed force by a State against the sovereignty,
territorial integrity or political independence of another state, or in any other
manner inconsistent with the Charter of the United Nations.
Article 3
Any of the following acts qualify as an act of agression
a. The invasion or attack by the armed forces of a state of the territory of another
state;
b. bombardment by the armed forces of a state against the territory of another
state;
c. The blackade of the ports or coasts of a state by the armed forces of another
state;
d. An attack by the armed forces on land, sea or air forces, or marine or air fleets of
another state;
e. The use of armed forces of one state in the territory of another state with the
agreement of the receiving state, in contravention of the conditions provided for in
the agreement or any extension of their presence in such territory beyond the
termination of the agreement;
f. The action of the state in allowing its territory, which it has placed at the disposal
of another state, to be used by that other state perpetrating an act of aggression
against a third state; and,
g. The sending by or on behalf of a state of armed force against another state of
such gravity as to amount to the acts listed above, or its substantial involvement
therein.

CHAPTER 7
THE RIGHT OF INDEPENDENCE
Sovereignty is the supreme, uncontrollable power inherent in a state by which that
state is governed. It is the supreme power of the State to command and enforce
obedience, the power to which, legally speaking, all interests are practically subject
and all wills subordinate.
Two Aspects of Sovereignty
1. Internal Sovereignty refers to the power of the state to direct its domestic
affairs, as when it establishes its government, enacts laws for observance within its
territory.
2. External Sovereignty signifies the freedom of the state to control its own
foreign affairs, as when it concludes treaties, makes war or peace, and maintains
diplomatic and commercial relations. It is often referred as independence.
Nature of Independence
Independence cannot be regarded as importing absolute freedom. It only means
freedom from control by any other state or group of states and not freedom from
restrictions that are binding on all states forming the family of nations.
Thus, a state may not employ force or even the threat of force in its relations with
other states because this is prohibited by Article 2 of the Charter of the United
Nations. It may adhere to the maxim of Pacta Sunt Servanda. The principle of
mare liberum will prevent it from arrogating to itself the exclusive use of the open
seas to the detriment of other states. Under the laws of neutrality, it must acquisce
in the exercise of certain belligerent rights even if this might impair its own interests
or those of its nationals.
Pacta Sunt Servanda the observance of a state to treaties with other state in
good faith.
Intervention
In addition, the state must abstain from intervention. Even as it expects its
independence to be respected by other states, so too must it be prepared to respect
their own independence.
Intervention an act by which a state interferes with the domestic or foreign
affairs of another state or states through the employment of force or the threat of
force.
The use of force is only allowed under the Charter of the United Nations when it is
exercised as an act of self-defense, or when it is decreed by the Security Council as
a preventive or enforcement action for the maintenance of international peace and
security.

The Drago Doctrine

This doctrine was embodied in the Hague Convention of 1907 through the provision
that the Contracting Powers agree not to have recourse to armed force for the
recovery of contract debts claimed from the government by the government of
another country as being due to its nationals.
This rule was, however, dissipated by the Porter Resolution.
Porter Resolution intervention was permitted if the debtor state refused an offer
to arbitrate, prevented agreement on the compromis, or having agreed thereto,
refused to abide by the award of the arbitrator.
CHAPTER 8
THE RIGHT OF EQUALITY
In Article 2 of the Charter of the United Nations, it is announced that the
Organization is based on the principle of the sovereign equality of all its Members.
In the provision of the Montevideo Convention of 1933, states are juridically equal,
enjoy the same rights, and have equal capacity in their exercise.
Essence of Equality
In international law, equality among states does not signify parity in physical power,
political influence or economic status or prestige.
Principle of Equality all the rights of state, regardless of their number, must be
obsreved or respected by the international community in the same manner as rights
of other states are observed and respected.
Accordingly, all members of the United Nations have each one vote in the General
Assembly, all votes having equal weight, and are generally eligible for positions in
the various organs of the United Nations. Every state has the right tothe protection
of its nationals, to make use of the open seas, or to acquire or
dispose territory.
Under the rule of par in parem, non habet imperium, even the strongest state
cannot assume jurisidiction over another state, no matter how weak.
Legal Equality v. Factual Inequality
But even from the viewpoint of strictly legal rules, it is apparent that absolute
equality among states is still a distant and well high impossible aspiration. Under
the Charter of the United Nations, for example, non-procedural questions are
decided by the Security Council only with the concurrence of the Big Five, any of
which may defeat a proposal through the exercise of the veto. This is true also with
respect to the ratification of any proposal to amend the Charter.

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

CHAPTER 9
TERRITORY
Territory the fixed portion of the surface of the earth inhabited by the people of
the state.
As previously observed, the territory must be big enough to provide for the needs of
the population but should not be so extensive as to be difficult to administer or
defend from external aggression.
Acquisition and Loss of Territory
Mode in the Acquisition of Territory
1.
2.
3.
4.
5.

by
by
by
by
by

discovery and occupation

prescription
cession
subjugation and
accretion

Mode of Losing Territory

1.
2.
3.
4.
5.

by
by
by
by
by

abandonment or dereliction
cession
subjugation
revolution and
natural causes

Discovery and Occupation

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

1. Possession, and
2. Administration
Mere possession will not suffice, as only an inchoate title of discovery is acquired by
the claimant state pending compliance with the second requirement, which is the
administration of the territory. Otherwise, the title will lapse and the territory will
become res nullius again.
Discovery alone, without any subsequent act, cannot at the present time suffice
to prove sovereignty over the Island of Palmas.... (Island of Palmas Case)
Besides the animus occupandi, the actual and not the nominal taking of
possession is necessary condition of occupation. This taking of possession consists...
steps to exercise exclusive authority there. (Clipperton Island Case)
Dereliction
Requisites of Valid Dereliction
1. act of withdrawal, and
2. the intention to abandon
Hence, where the forces of the state are driven away from the territory by the
natives, title is not thereby necessarily forfeited, as it may be that they intend to
return with the necessary reinforcements to suppress the resistance. If such
intention is not present, the territory itself becomes res nullius or terra nullius,
becoming open once again to the territorial ambitions of other states.
Prescription
There is as yet no rule in international law fixing the period of possession necessary
to transfer title to the territory from the former to the subsequent sovereign.
Cession
Cession is a method by which territory is transferred by one state to another by
voluntary agreement between them. Cession may be in the form of sale, donation,
barter or exchange, and even by testamentary disposition.
Subjugation
Subjugation is when, having been previously conquered or occupied in the
course of war by the enemy, it is formally annexed to it at the end of the war.
Requisites of Valid Subjugation
1. conquest
2. annexation
Accretion

Accretion is a mode of acquiring territory based on the principle of accession

cedat principali. It is accomplished through both or natural or artificial processes.
Components of Territory
Territory of the State Consists of the Following:
1. Terrestrial Domain
2. Maritime and Fluvial Domain
3. Aerial Domain
A. The Terrestrial Domain
Terrestrial Domain refers to the land mass which may integrate, or
dismembered, or partly bounded by water, or consists of one whole island. It may
also be composed of several islands, like the Philippines and Indonesia, which are
known as mid-ocean archipelagoes, as distinguished from the coastal archipelagoes
like Greece.
B. The Maritime and Fluvial Domain
Maritime and Fluvial Domain consists off the bodies of water within the land
mass and the waters adjacent to the coasts of the state up to a specified limit.
1. Rivers
Rivers may be classified into:
national situated completely in the territory of one state,
multi-national that flow through the territories of several states,
international that is navigable from the open sea and is open to the use of
vessels from all states,and
boundary divides the territories of riparian states.
Thalweg Doctrine the boundary line is laid on the river, that is, on the center,
not of the river itself, but of its main channel.
Where the boundary river changes its course by a gradual and normal process, such
as accretion or erosion, the dividing line follows the new course; but if the deviation
is violent is abrupt, as by avulsion, the boundary line will continue to be laid on the
old bed of the river, in the absence of contrary agreement.
As for the dividing line on a bridge across a boundary river, the same is laid on the
middle of the bridge regardless of the location of the channel underneath, unless
otherwise provided by the riparian state.
2. Bays
Bay is a well-marked indentation whose penetration is in such proportion to the
width of its mouth as to contain land-locked waters and constitute more than a
curvature of the coasts.

An indentation shall not, however, be regarded as a bay unless its area is as large
as or larger than that of a semi-circle whose diameter is a line drawn across the
mouth of that indentation.
The above rules do not apply to the so-called historic bays.
3. The Territorial Sea
Territorial Sea described as the belt of waters adjacent to the coasts of the
state, excluding the internal waters in bays and gulfs, over which the state claims
sovereignty and jurisdiction.
Traditionally, the breadth of the territorial sea is reckoned at three nautical miles, or
a marine league, from the low-water mark.
However, many states have since extended their territorial seas, so that no uniform
rule can be regarded as established at present in this regard.
4. The UN Conferences of the Law of the Sea
Three international conferences had been called so far to formulate a new law of the
sea.
The first was held in 1958 at Geneva, Switzerland, and resulted in the adoption of
the Convention on the Territorial Sea and the Contiguous Zone, the Convention of
the High Seas, and the Convention on Fishing and the Living Resources of the High
Seas, and the Convention on the Continental Shelf. It failed however to define the
breadth of the territorial sea. The Philippines did not ratify it because of the absence
of provisions recognizing the archipelago doctrine it was advocating.
The second conference, which was held in 1960, also at Geneva, likewise left
unresolved the question on the breadth of the territorial sea.
The third conference, called in 1970 by the United Nations is still in progress.
5. The Philippine Territorial Sea
The claim of the Philippines to its territorial sea is based on historic right or title or
as it is often called the treaty limits theory.
6. The Archipelago Doctrine
The Philippine position on the definition of its internal waters is commonly known as
the archipelago doctrine. This is articulated in the second sentence of Article I of the
1987 Constitution, which follows:
The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all the other territories belonging to
the Philippines by historic right or legal title...
Our position is that all these islands should be considered one integrated whole
instead of being fragmented into separate units each with its own territorial sea.

Otherwise, the water outside each of these territorial seas will be regarded as high
seas and thus be open to all foreign vessels to the prejudice of our economy and
national security.
An archipelago is a group of islands, including parts of islands, interconnecting
waters and other natural features which are so closely interrelated that such
islands, waters and other natural features form an intrinsic geographical, economic,
and political entity, or which historically have been regarded as such.
Hence, in defining the internal waters of the archipelago, straight baselines
should be drawn to connect appropriate points of the outermost islands
without departing radically from the general direction of the coast so that
the entire archipelago shall be encompassed as one whole territory. The
waters inside these baselines shall be considered internal and thus not subject to
entry by foreign vessels without the consent of the local state.

7. Basis of the Article I of the 1987 Constitution

Article I of the 1987 Constitution was based on R.A. 3046 as amended by R.A. No.
5446 declaring the Philippine territorial sea.
8. Methods of defining the Territorial Sea
Two Methods Defining the Territorial Sea
(a) Normal baseline method the territorial sea is simply drawn from the lowwater mark of the coast, to the breadth claimed, following its sinuosities and
curvatures but excluding the the internal waters in bays and gulfs.
(b) Straight baseline method straight lines are made to connect appropriate
points on the coast without departing radically from its general direction.
C. The Aerial Domain
The aerial domain the airspace above the terrestrial domain and the maritime
and fluvial domain of the state, to an unlimited altitude but not including the outer
space.
CHAPTER 10
JURISDICTION
Jurisdiction is the authority exercised by the state over persons and things within or
sometimes outside its territory, subject to certain exceptions.
General Classifications of Jurisdiction
1. Personal Jurisdiction

2. Territorial Jurisdiction
Subjects of State Jurisdiction
1. its nationals
2. the terrestrial domain
3. the maritime and fluvial domain
4. the continental shelf
5. the open seas
6. the aerial domain
7. outer space
8. other territories
Personal Jurisdiction
Personal jurisdiction is the power exercised by the state over its nationals. It is
based on the theory that a national is entitled to the protection of his state
wherever he may be and is, therefore, bound to it by a duty of obedience and
allegiance.
Article 15 of the Civil Code: laws relating to family rights and duties, or to the
status, condition and legal capacity of persons, are binding upon citizens of the
Philippines, even though living abroad.
Under Article 16 of the Civil Code: intestate and testamentary succession, both
with respect to the other of succession and to the amount of successional rights and
to the intrinsic validity of testamentary provisions, shall be regulated by the national
law of the person whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein said property may be
found.
Jurisdiction to tax our citizens, even if not residing in the Philippines, is also
provided for in our Internal Revenue Code for income received by them from all
sources.
Indeed, even an alien may be held subject to the laws of a state whose national
interest he has violated, and notwithstanding that the offense was committed
outside its territory.
Article 2 of the Revised Penal Code, for instance, punishes any person who,
whether in or outside our territory, should forge or counterfeit Philippine currency,
utter such spurious securities or commit any crime against our national security or
the law of the nations.
Territorial Jurisdiction
General rule: a state has jurisdiction over all persons and property within its
territory.

The jurisdiction of the nation within its own territory is necessary, exclusive and
absolute. It is susceptible of no limitation not imposed by itself (The Schooner
Exchange v McFaddon).
Exceptions:
1. Foreign states, heads of states, diplomatic representatives, and consuls to a
certain degree;
Foreign states and their heads are exempt because of the sovereign equality of
states and on the theory that a contrary rule would disturb the peace of nations.
Diplomats and consuls enjoy the exemption in order that they may have full
freedom in the discharge of their official functions.
2. Foreign state property engaged in non-commercial activities;
By fiction of law, public vessels are regarded as extensions of the territory of the
foreign state.
3. Acts of state;
Every sovereign state is bound to respect the independence of every other
sovereign state, and the courts of one country will not sit in judgment on the acts of
the government of another, done within its own territory.
4. Foreign merchant vessels exercising the rights of innocent passage or arrival
under stress;
Innocent passage navigation through the territorial sea of the state for the
purpose of traversing that sea without entering internal waters, or of proceeding to
internal waters, as long as it is not prejudicial to the peace, good order or security of
the coastal state.
Arrival under stress entrance to another state due to lack of provisions,
unseawothiness of the vessel, inclement weather, or other force majeure, like
pursuit by pirates.
5. Foreign armies passing through or stationed in its territory with its permission;
6. Such other persons or property over which it may, by agreement, waive
jurisdiction.
Land Jurisdiction
Everything found within the territorial domain of the state is under its jurisdiction.
Nationals and aliens, including non-residents, are bound by its laws, and no process
from a foreign government can take effect for or against them within the territory of
the local state without its permission.
Also, as against all other states, the local state has exclusive title to all property
within its territory which it may own in its own corporate capacity or regulate when

under private ownership through its police power for forcibly acquire through the
power of eminent domain. Such property is also subject to its taxing power.
Maritime and Fluvial Jurisdiction
General rule: the internal waters of a state are assimilated to the land mass and
subjected to the same degree of jurisdiction exercised over the terrestrial domain.
Civil, criminal and administrative jurisdiction is exercised by the flag state over its
public vessels wherever they may be, provided they are not engaged in commerce.
Foreign merchant vessels docked in a local port or bay, jurisdiction is exercised over
them by the coastal state in civil matters.
Criminal jurisdiction is determined according to either the English rule or the French
Rule.
English rule the coastal state shall have jurisdiction over all offenses committed
on board, except only where they do not compromise the peace of the port.
French rule the flag state shall have jurisdiction over all offenses committed on
board such vessel, except only where they compromise the peace of the port.
The Contiguous Zone
Contiguous Zone a protective jurisdiction extending beyond the territorial sea,
but not more than 12 miles from the coast of the state. It is necessary to:
1. prevent infringement of its customs, fiscal, immigration or sanitary regulations
within its territory or territorial sea; and,
2. punish infringement of the above regulations within its territory or territorial sea.
The Continental Shelf
Continental Shelf refers to a) the seabed and subsoil of the submarine areas
adjacent to the coast but outside the area of the territorial sea, to a depth of 200
meters, or beyond that limit, to where the depth of superjacent waters admits the of
the exploitation of the natural resources of the said areas; and, b) to the seabed and
subsoil of similar areas adjacent to the coasts of islands.
The coastal state has the sovereign right to explore the continental shelf and to
exploit its natural resources and for this purpose it may erect on it such installations
and equipment as may be necessary.
But this right shall not affect the legal nature of the superjacent waters as open
seas or of the airspace above such waters and their use as such by other states
shall not be impaired or disturbed.

The Patrimonial Sea

The Exclusive Economic Zone (EEZ) or Patrimonial Sea extends 200 nautical
miles from the coast or the baselines. All living and non-living resources found
therein are claimed to belong exclusively to the coastal state.
However, it has not yet been recognized as a rule of international law.
The Open Seas
General rule: The open seas or the high seas are res communis and available to
the use of all states for purposes of navigation, flying over them, laying submarine
cables or fishing.
Exceptions:
1. Over its vessels. The flag state has jurisdiction over its public vessels at all
times, whether they be in its own territory, in the territory of other states or on the
open seas. Merchant vessels, on the other hand, are under its jurisdiction when they
are within its territory, when jurisdiction is waived or cannot be exercised by the
territorial sovereign, or when such vessels are on the open seas.
2. Over pirates. Pirates are enemies of all mankind and may be captured on the
open seas by the vessels of any state, to whose territory they may be brought for
trial and punishment. Where a pirate vessel attempts to escape into territorial
waters of another state, the pursuing vessel may continue the chase but is under
the obligation of turning over the pirates, when captured, to the authorities of the
coastal state.
3. In the exercise of the right of visit and search. Under the laws of neutrality,
the public vessels or aircraft of a belligerent state may visit and search any neutral
merchant vessel on the open seas and capture it or its cargo if it is found or
suspected to be engaged or to have engaged in activities favorable to the other
belligerent.
4. Under the doctrine of hot pursuit. If an offense is committed by a foreign
merchant vessel within the territorial waters of the coastal state, its own vessels
may pursue the offending vessel into the open seas and upon capture bring it back
to its territory. The pursuit must be continuous or unabated; otherwise, it will be
deemed to have cooled and can no longer be resumed.
Aerial Jurisdiction
There are no traditional rules in international law regarding the rights of the
subjacent state to its aerial domain.
Nonetheless, it may be said that the consensus appears to be that the local state
has jurisdiction over the airspace above it to an unlimited height, or at the most up
to where outer space begins. Accordingly, and as a corollary to this rule, no foreign
aircraft, civil or military, may pass through the aerial domain of a state without its
consent.

General rule: Under the Convention on Offenses and Certain Other Acts
Committed on Board Aircraft, it is the state of registration of the aircraft that has
jurisdiction over offenses and acts committed on board while it is in flight or over
the high seas or any other area outside the territory of any state.
Exceptions: Other state may exercise jurisdiction when--1. The offense has effect on the territory of such state;
2. The offense has been committed by or against a national or permanent resident
of such state;
3. The offense is against the security of such state;
4. The offense consists of a breach of any rules or regulations relating to the flight
or maneuver of aircraft in force in such state; and,
5. The exercise of jurisdiction is necessary to ensure the observance of any
obligation of such state under a multilateral international agreement.