SIMON VS.
CHR however, is not investigatorial in character but prescinds from an adjudicative power that it does
FACTS: The case all started when a "Demolition Notice," dated 9 July 1990, signed by Carlos
Quimpo (one of the petitioners) in his capacity as an Executive Officer of the Quezon City
Integrated Hawkers Management Council under the Office of the City Mayor, was sent to, and
received by, the private respondents (being the officers and members of the North Edsa
Vendors Association, Incorporated). In said notice, the respondents were given a grace-period of
three (3) days (up to 12 July 1990) within which to vacate the questioned premises of North
EDSA. Prior to their receipt of the demolition notice, the private respondents were informed by
petitioner Quimpo that their stalls should be removed to give way to the "People's Park". On 12
July 1990, the group, led by their President Roque Fermo, filed a letter-complaint with the CHR
against the petitioners, asking the late CHR Chairman Mary Concepcion Bautista for a letter to
be addressed to then Mayor Brigido Simon, Jr., of Quezon City to stop the demolition of the
private respondents' stalls, sari-sari stores, and carinderia along North EDSA. On 23 July 1990,
the CHR issued an Order, directing the petitioners "to desist from demolishing the stalls and
shanties at North EDSA pending resolution of the vendors/squatters' complaint before the
Commission" and ordering said petitioners to appear before the CHR. On the basis of the sworn
statements submitted by the private respondents on 31 July 1990, as well as CHR's own ocular
inspection, and convinced that on 28 July 1990 the petitioners carried out the demolition of
private respondents' stalls, sari-sari stores and carinderia, the CHR, in its resolution of 1 August
1990, ordered the disbursement of financial assistance of not more than P200,000.00 in favor of
the private respondents to purchase light housing materials and food under the Commission's
supervision and again directed the petitioners to "desist from further demolition, with the warning
that violation of said order would lead to a citation for contempt and arrest."
On 18 September 1990, a supplemental motion to dismiss was filed by the petitioners, stating
that the Commission's authority should be understood as being confined only to the investigation
of violations of civil and political rights, and that "the rights allegedly violated in this case (were)
not civil and political rights, (but) their privilege to engage in business." In an Order, 11 dated 25
September 1990, the CHR cited the petitioners in contempt for carrying out the demolition of the
stalls, sari-sari stores and carinderia despite the "order to desist", and it imposed a fine of
P500.00 on each of them.
ISSUE: Is the issuance of an "order to desist" within the extent of the authority and power of the
CRH?
HELD: NO. In the particular case at hand, there is no cavil that what are sought to be
demolished are the stalls, sari-sari stores and carinderia, as well as temporary shanties, erected
by private respondents on a land which is planned to be developed into a "People's Park." More
than that, the land adjoins the North EDSA of Quezon City which, this Court can take judicial
notice of, is a busy national highway. The consequent danger to life and limb is not thus to be
likewise simply ignored. It is indeed paradoxical that a right which is claimed to have been
violated is one that cannot, in the first place, even be invoked, if it is, in fact, extant. Be that as it
may, looking at the standards hereinabove discoursed vis-a-vis the circumstances obtaining in
this instance, we are not prepared to conclude that the order for the demolition of the stalls, sari-
sari stores and carenderia of the private respondents can fall within the compartment of "human
rights violations involving civil and political rights" intended by the Constitution.
On its contempt powers, the CHR is constitutionally authorized to "adopt its operational
guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with
the Rules of Court." Accordingly, the CHR acted within its authority in providing in its revised
rules, its power "to cite or hold any person in direct or indirect contempt, and to impose the
appropriate penalties in accordance with the procedure and sanctions provided for in the Rules
of Court." That power to cite for contempt, however, should be understood to apply only to
violations of its adopted operational guidelines and rules of procedure essential to carry out its
investigatorial powers. To exemplify, the power to cite for contempt could be exercised against
persons who refuse to cooperate with the said body, or who unduly withhold relevant
information, or who decline to honor summons, and the like, in pursuing its investigative work.
The "order to desist" (a semantic interplay for a restraining order) in the instance before us,
not possess.
RISOS-VIDAL VS. COMELEC
FACTS: In September 12, 2007, the Sandiganbayan convicted former President Estrada for the
crime of plunder and was sentenced to suffer the penalty of Reclusion Perpetua and the
accessory penalties of civil interdiction during the period of sentence and perpetual absolute
disqualification. On October 25, 2007, however, former President Gloria Macapagal Arroyo
extended executive clemency, by way of pardon, to former President Estrada, explicitly stating
that he is restored to his civil and political rights. In 2009, Estrada filed a Certificate of Candidacy
for the position of President. None of the disqualification cases against him prospered but he
only placed second in the results. In 2012, Estrada once more ventured into the political arena,
and filed a Certificate of Candidacy, this time vying for a local elective post, that of the Mayor of
the City of Manila.
Petitioner Risos-Vidal filed a Petition for Disqualification against Estrada before
the Comelec stating that Estrada is disqualified to run for public office because of his conviction
for plunder sentencing him to suffer the penalty of reclusion perpetua with perpetual absolute
disqualification. Petitioner relied on Section 40 of the Local Government Code (LGC), in relation
to Section 12 of the Omnibus Election Code (OEC). The Comelec dismissed the petition for
disqualification holding that President Estrada’s right to seek public office has been effectively
restored by the pardon vested upon him by former President Gloria M. Arroyo. Estrada won the
mayoralty race in May 13, 2013 elections. Alfredo Lim, who garnered the second highest votes,
intervened and sought to disqualify Estrada for the same ground as the contention of Risos-Vidal
and praying that he be proclaimed as Mayor of Manila.
ISSUE: May former President Joseph Estrada run for public office despite having been
convicted of the crime of plunder which carried an accessory penalty of perpetual disqualification
to hold public office?
HELD: Yes. Estrada was granted an absolute pardon that fully restored all his civil and political
rights, which naturally includes the right to seek public elective office, the focal point of this
controversy. The wording of the pardon extended to former President Estrada is complete,
unambiguous, and unqualified. It is likewise unfettered by Articles 36 and 41 of the Revised
Penal Code. The only reasonable, objective, and constitutional interpretation of the language of
the pardon is that the same in fact conforms to Articles 36 and 41 of the Revised Penal Code.
It is insisted that, since a textual examination of the pardon given to and accepted by former
President Estrada does not actually specify which political right is restored, it could be inferred
that former President Arroyo did not deliberately intend to restore former President Estrada’s
rights of suffrage and to hold public office, orto otherwise remit the penalty of perpetual absolute
disqualification. Even if her intention was the contrary, the same cannot be upheld based on the
pardon’s text. The pardoning power of the President cannot be limited by legislative action. The
1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article IX-C, provides
that the President of the Philippines possesses the power to grant pardons, along with other acts
of executive clemency
He shall also have the power to grant amnesty with the concurrence of a majority of all the
Members of the Congress.
Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws,
rules, and regulations shall be granted by the President without the favorable recommendation
of the Commission.
It is apparent from the foregoing constitutional provisions that the only instances in which the
President may not extend pardon remain to be in: (1) impeachment cases; (2) cases that have
not yet resulted in a final conviction; and (3) cases involving violations of election laws, rules and
regulations in which there was no favorable recommendation coming from the COMELEC.
Therefore, it can be argued that any act of Congress by way of statute cannot operate to delimit
the pardoning power of the President.
The proper interpretation of Articles 36 and 41 of the Revised Penal Code.
A close scrutiny of the text of the pardon extended to former President Estrada shows that both
the principal penalty of reclusion perpetua and its accessory penalties are included in the
pardon. The sentence which states that “(h)e is hereby restored to his civil and political rights,”
expressly remitted the accessory penalties that attached to the principal penalty of reclusion
perpetua. Hence, even if we apply Articles 36 and 41 of the Revised Penal Code, it is indubitable
from the text of the pardon that the accessory penalties of civil interdiction and perpetual
absolute disqualification were expressly remitted together with the principal penalty of reclusion
perpetua. The disqualification of former President Estrada under Section 40 of the LGC in
relation to Section 12 of the OEC was removed by his acceptance of the absolute pardon
granted to him. While it may be apparent that the proscription in Section 40(a) of the LGC is
worded in absolute terms, Section 12 of the OEC provides a legal escape from the prohibition –
a plenary pardon or amnesty. In other words, the latter provision allows any person who has
been granted plenary pardon or amnesty after conviction by final judgment of an offense
involving moral turpitude, inter alia, to run for and hold any public office, whether local or national
position.
The third preambular clause of the pardon did not operate to make the pardon
conditional.
Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e., "[w]hereas,
Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office,"
neither makes the pardon conditional, nor militate against the conclusion that former President
Estrada’s rights to suffrage and to seek public elective office have been restored.
This is especially true as the pardon itself does not explicitly impose a condition or limitation,
considering the unqualified use of the term "civil and political rights"as being restored.
Jurisprudence educates that a preamble is not an essential part of an act as it is an introductory
or preparatory clause that explains the reasons for the enactment, usually introduced by the
word "whereas." Whereas clauses do not form part of a statute because, strictly speaking, they
are not part of the operative language of the statute. In this case, the whereas clause at issue is
not an integral part of the decree of the pardon, and therefore, does not by itself alone operate to
make the pardon conditional or to make its effectivity contingent upon the fulfilment of the
aforementioned commitment nor to limit the scope of the pardon.
Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its
intent or purposes. It cannot be the origin of rights and obligations. Where the meaning of a
statute is clear and unambiguous, the preamble can neither expand nor restrict its operation
much less prevail over its text. If former President Arroyo intended for the pardon to be
conditional on Respondent’s promise never to seek a public office again, the former ought to
have explicitly stated the same in the text of the pardon itself. Since former President Arroyo did
not make this an integral part of the decree of pardon, the Commission is constrained to rule that
the 3rd preambular clause cannot be interpreted as a condition to the pardon extended to former
President Estrada.
LEONEN, dissent:
The Dissent of Justice Marvic M.V.F. Leonen agreed with Risos Vidal that there was no express
remission and/or restoration of the rights of suffrage and/or to hold public office in the pardon
granted to former President Estrada, as required by Articles 36 and 41 of the Revised Penal
Code. Justice Leonen posits in his Dissent that the aforementioned codal provisions must be
followed by the President, as they do not abridge or diminish the President’s power to extend
clemency. He opines that they do not reduce the coverage of the President’s pardoning power.
Particularly, he states:
Articles 36 and 41 refer only to requirements of convention or form. They only provide a
procedural prescription. They are not concerned with areas where or the instances when the
President may grant pardon; they are only concerned with how he or she is to exercise such
power so that no other governmental instrumentality needs to intervene to give it full effect.
All that Articles 36 and 41 do is prescribe that, if the President wishes to include in the pardon
the restoration of the rights of suffrage and to hold public office, or the remission of the
accessory penalty of perpetual absolute disqualification, he or she should do so expressly.
Articles 36 and 41 only ask that the President state his or her intentions clearly, directly, firmly,
precisely, and unmistakably. To belabor the point, the President retains the power to make such
restoration or remission, subject to a prescription on the manner by which he or she is to state it.
With due respect, I disagree with the overbroad statement that Congress may dictate as to how
the President may exercise his/her power of executive clemency. The form or manner by which
the President, or Congress for that matter, should exercise their respective Constitutional
powers or prerogatives cannot be interfered with unless it is so provided in the Constitution. This
is the essence of the principle of separation of powers deeply ingrained in our system of
government which "ordains that each of the three great branches of government has exclusive
cognizance of and is supreme in matters falling within its own constitutionally allocated sphere."
Moreso, this fundamental principle must be observed if noncompliance with the form imposed by
one branch on a co-equal and coordinate branch will result into the diminution of an exclusive
Constitutional prerogative.
IV. INTERNATIONAL INSTRUMENTS
A. Universal Declaration of Human Rights
UDHR PREAMBLE
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have
outraged the conscience of mankind, and the advent of a world in which human beings shall
enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the
highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to
rebellion against tyranny and oppression, that human rights should be protected by the rule of
law,
Whereas it is essential to promote the development of friendly relations between nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in
fundamental human rights, in the dignity and worth of the human person and in the equal rights
of men and women and have determined to promote social progress and better standards of life
in larger freedom,
Whereas Member States have pledged themselves to achieve, in co-operation with the United
Nations, the promotion of universal respect for and observance of human rights and fundamental
freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance
for the full realization of this pledge,
Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF
HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the
end that every individual and every organ of society, keeping this Declaration constantly in mind,
shall strive by teaching and education to promote respect for these rights and freedoms and by
progressive measures, national and international, to secure their universal and effective
recognition and observance, both among the peoples of Member States themselves and among
the peoples of territories under their jurisdiction.
GOVERNMENT OF HING KONG VS HON. OLALIA AND JUAN ANTONIO MUNOZ
FACTS: On January 30, 1995, the Republic of the Philippines and the then British Crown
Colony of Hong Kong signed an "Agreement for the Surrender of Accused and Convicted
Persons." It took effect on June 20, 1997. On July 1, 1997, Hong Kong reverted back to the
People’s Republic of China and became the Hong Kong Special Administrative Region. Private
respondent Muñoz was charged before the Hong Kong Court with three (3) counts of the offense
of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of
Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of
conspiracy to defraud, penalized by the common law of Hong Kong. On August 23, 1997 and
October 25, 1999, warrants of arrest were issued against him. If convicted, he faces a jail term of
seven (7) to fourteen (14) years for each charge.
On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request
for the provisional arrest of private respondent. The DOJ then forwarded the request to the NBI
which, in turn, filed with the RTC Manila an application for the provisional arrest of private
respondent. On September 23, 1999, RTC issued an Order of Arrest against private
respondent. That same day, the NBI agents arrested and detained him. On October 14, 1999,
private respondent filed with the CA a petition for certiorari, prohibition and mandamus with
application for preliminary mandatory injunction and/or writ of habeas corpus questioning the
validity of the Order of Arrest. CA rendered its Decision declaring the Order of Arrest void. DOJ
filed with the SC a petition for review on certiorari, praying that the Decision of CA be reversed.
Sc rendered a Decision granting the petition of the DOJ and sustaining the validity of the Order
of Arrest against private respondent. The Decision became final and executory on April 10,
2001.
Meanwhile, petitioner filed with the RTC of Manila a petition for the extradition of private
respondent. For his part, private respondent filed, in the same case,- a petition for bail which
was opposed by petitioner. RTC denied the petition for bail, holding that there is no Philippine
law granting bail in extradition cases and that private respondent is a high "flight risk."
Private respondent filed a motion for reconsideration of the Order denying his application for bail.
This was granted by respondent judge allowing private respondent to post bail which held that
the Trial Court will not contribute to accused’s further erosion of civil liberties but was subject to
several conditions. On December 21, 2001, petitioner filed an urgent motion to vacate the above
Order, but it was denied by respondent judge.
Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of
discretion amounting to lack or excess of jurisdiction in admitting private respondent to bail; that
there is nothing in the Constitution or statutory law providing that a potential extraditee has a
right to bail, the right being limited solely to criminal proceedings. In his comment on the petition,
private respondent maintained that the right to bail guaranteed under the Bill of Rights extends
to a prospective extraditee; and that extradition is a harsh process resulting in a prolonged
deprivation of one’s liberty.
ISSUE: Whether Private Respondent is entitled to bail?
HELD: YES. However, he must present evidence to show that he is not a flight risk. This case is
REMANDED to the trial court to determine whether private respondent is entitled to bail on the
basis of "clear and convincing evidence." If not, the trial court should order the cancellation of
his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings
with dispatch.
RATIO: Section 13, Article III of the Constitution provides that the right to bail shall not be
impaired, thus: Sec. 13. 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.
The provision in the Constitution stating that the "right to bail shall not be impaired even when
the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the
constitutional right to bail is available only in criminal proceedings. It must be noted that the
suspension of the privilege of the writ of habeas corpus finds application "only to persons
judicially charged for rebellion or offenses inherent in or directly connected with invasion" (Sec.
18, Art. VIII, Constitution). Hence, the second sentence in the constitutional provision on bail
merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It
cannot be taken to mean that the right is available even in extradition proceedings that are not
criminal in nature.
Extradition has thus been characterized as the right of a foreign power, created by treaty, to
demand the surrender of one accused or convicted of a crime within its territorial jurisdiction, and
the correlative duty of the other state to surrender him to the demanding state.8 It is not a
criminal proceeding.9 Even if the potential extraditee is a criminal, an extradition proceeding is
not by its nature criminal, for it is not punishment for a crime, even though such punishment may
follow extradition.10 It is sui generis, tracing its existence wholly to treaty obligations between
different nations.11 It is not a trial to determine the guilt or innocence of the potential
extraditee.12 Nor is it a full-blown civil action, but one that is merely administrative in
character.13 Its object is to prevent the escape of a person accused or convicted of a crime and
to secure his return to the state from which he fled, for the purpose of trial or punishment.14
But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails
a deprivation of liberty on the part of the potential extraditee and (b) the means employed to
attain the purpose of extradition is also "the machinery of criminal law." This is shown by Section
6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and
temporary detention of the accused" if such "will best serve the interest of justice." We further
note that Section 20 allows the requesting state "in case of urgency" to ask for the "provisional
arrest of the accused, pending receipt of the request for extradition;" and that release from
provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for
extradition is received subsequently."
Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a
criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of
liberty, and forced to transfer to the demanding state following the proceedings. "Temporary
detention" may be a necessary step in the process of extradition, but the length of time of the
detention should be reasonable.
Records show that private respondent was arrested on September 23, 1999, and remained
incarcerated until December 20, 2001, when the trial court ordered his admission to bail. In other
words, he had been detained for over two (2) years without having been convicted of any crime.
By any standard, such an extended period of detention is a serious deprivation of his
fundamental right to liberty. In fact, it was this prolonged deprivation of liberty which prompted
the extradition court to grant him bail.
While our extradition law does not provide for the grant of bail to an extraditee, however, there is
no provision prohibiting him or her from filing a motion for bail, a right to due process under the
Constitution.
The applicable standard of due process, however, should not be the same as that in criminal
proceedings. In the latter, the standard of due process is premised on the presumption of
innocence of the accused. As Purganan correctly points out, it is from this major premise that the
ancillary presumption in favor of admitting to bail arises. Bearing in mind the purpose of
extradition proceedings, the premise behind the issuance of the arrest warrant and the
"temporary detention" is the possibility of flight of the potential extraditee. This is based on the
assumption that such extraditee is a fugitive from justice.15 Given the foregoing, the prospective
extraditee thus bears the onus probandi of showing that he or she is not a flight risk and should
be granted bail.
The time-honored principle of pacta sunt servanda demands that the Philippines honor its
obligations under the Extradition Treaty it entered into with the Hong Kong Special
Administrative Region. Failure to comply with these obligations is a setback in our foreign
relations and defeats the purpose of extradition. However, it does not necessarily mean that
in keeping with its treaty obligations, the Philippines should diminish a potential
extraditee’s rights to life, liberty, and due process. More so, where these rights are
guaranteed, not only by our Constitution, but also by international conventions, to which the
Philippines is a party. We should not, therefore, deprive an extraditee of his right to apply for
bail, provided that a certain standard for the grant is satisfactorily met.
An extradition proceeding being sui generis, the standard of proof required in granting or
denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the
standard of proof of preponderance of evidence in civil cases. While administrative in character,
the standard of substantial evidence used in administrative cases cannot likewise apply given
the object of extradition law which is to prevent the prospective extraditee from fleeing our
jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice
Reynato S. Puno, proposed that a new standard which he termed "clear and convincing
evidence" should be used in granting bail in extradition cases. According to him, this standard
should be lower than proof beyond reasonable doubt but higher than preponderance of
evidence. The potential extraditee must prove by "clear and convincing evidence" that he is not
a flight risk and will abide with all the orders and processes of the extradition court.
The Philippines, along with the other members of the family of nations, committed to uphold the
fundamental human rights as well as value the worth and dignity of every person. This
commitment is enshrined in Section II, Article II of our Constitution which provides: "The State
values the dignity of every human person and guarantees full respect for human rights." The
Philippines, therefore, has the responsibility of protecting and promoting the right of every
person to liberty and due process, ensuring that those detained or arrested can participate in the
proceedings before a court, to enable it to decide without delay on the legality of the detention
and order their release if justified. In other words, the Philippine authorities are under obligation
to make available to every person under detention such remedies which safeguard their
fundamental right to liberty. These remedies include the right to be admitted to bail. While this
Court in Purganan limited the exercise of the right to bail to criminal proceedings, however, in
light of the various international treaties giving recognition and protection to human rights,
particularly the right to life and liberty, a reexamination of this Court’s ruling in Purganan is in
order.
First, we note that the exercise of the State’s power to deprive an individual of his liberty is not
necessarily limited to criminal proceedings. Respondents in administrative proceedings, such as
deportation and quarantine,4 have likewise been detained.
Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential
history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal
proceedings only. This Court has admitted to bail persons who are not involved in criminal
proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during the
pendency of administrative proceedings, taking into cognizance the obligation of the Philippines
under international conventions to uphold human rights.
If bail can be granted in deportation cases, we see no justification why it should not also be
allowed in extradition cases. Likewise, considering that the Universal Declaration of Human
Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition
cases. After all, both are administrative proceedings where the innocence or guilt of the person
detained is not in issue.
Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be
viewed in the light of the various treaty obligations of the Philippines concerning respect
for the promotion and protection of human rights. Under these treaties, the presumption
lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty
of every individual is not impaired.
B. International Convenant on Civil and Political Rights (ICCPR)
ICCPR PREAMBLE:
The States Parties to the present Covenant,
Considering that, in accordance with the principles proclaimed in the Charter of the United
Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members
of the human family is the foundation of freedom, justice and peace in the world,
Recognizing that these rights derive from the inherent dignity of the human person,
Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of
free human beings enjoying civil and political freedom and freedom from fear and want can only
be achieved if conditions are created whereby everyone may enjoy his civil and political rights,
as well as his economic, social and cultural rights,
Considering the obligation of States under the Charter of the United Nations to promote
universal respect for, and observance of, human rights and freedoms,
Realizing that the individual, having duties to other individuals and to the community to which he
belongs, is under a responsibility to strive for the promotion and observance of the rights
recognized in the present Covenant,
Agree upon the following articles...... (See articles 1-53)
IN THE MATTER OF THE ALLEGATIONS CONTAINED IN THE COLUMNS OF MR. AMADO
P. MACASAET PUBLISHED IN MALAYA
FACTS: The case stemmed from certain articles that appeared in the Business Circuit column of
Amado P. Macasaet in the Malaya, a newspaper of general circulation of which he is the
publisher. The articles, containing statements and innuendoes about an alleged bribery incident
in the Supreme Court, came out in four (4) issues of the newspaper on September 18, 19, 20
and 21, 2007. Based on the published articles, Mr. Macasaet is alleging that there is a Lady
Justice in the Supreme Court who received 10 Million pesos in exchange of her favorable
decision to Henry Go’s case. The columnist further alleged that this Lady Justice fired her
secretary (allegedly named Cecilia) when the latter opened one of the 5 boxes where a portion
of the money was stored. Thereafter, Marites Daguilan-Vitug, Editor in Chief of Newsbreak,
faxed a letter to Supreme Court Associate Justice Consuelo Ynares-Santiago asking for three
things:
1. On April 13, 2007, you dissented against the decision penned by Justice Romeo Callejo, Sr. ruling
that the Sandiganbayan Fifth Division did not commit a grave abuse of discretion by finding probable
cause against Henry Go. The vote was 3-2 in favor of Callejas (sic) decision. Five months later
(September 3, 2007), acting on Gos motion for reconsideration (by that time, Callejo had already
retired), you ordered the dismissal of the graft case against Go. I understand the exchanges were bitter
and the deliberations long. Please explain the contentious issues.
2. We have gathered from three sources that you received a cash gift of P10 million in March 2007 in
the midst of deliberations on the case. Please comment.
3. Were checking if this is accurate. Your secretary, who opened the gift-wrapped box thinking that it
contained perishable items, found cash instead. It was after this incident that you removed her in
March 2007.
Upon receipt of the faxed letter, Mme. Justice Ynares-Santiago called for Assistant Court
Administrator (ACA) Jose Midas P. Marquez, Chief of the Supreme Court Public Information
Office, showed him the letter of Daguilan-Vitug, and requested him to tell Daguilan-Vitug that
she (Mme. Justice Ynares-Santiago) had been consistent on her position in the Go case, that
she never reversed herself, that she never received a cash gift, and that no secretary was
terminated for opening a gift-wrapped box containing money. Accordingly, ACA Marquez went
back to his office, called up Daguilan-Vitug and told her what Mme. Justice Ynares-Santiago told
him. The following day, respondent Macasaet, in his column, named the supposed secretary
who was forthwith x x x fired allegedly after opening the box of money: It turns out that Cecilia
Muoz Delis from Bicol picked up the last five boxes several times in March.
However, in her affidavit, Delis stated that she had nothing to do with, nor did x x x have any
knowledge of such alleged attempted bribery, and that she executed her affidavit to allow Justice
Consuelo Ynares-Santiago to defend her honor,[11] and for the purpose of correcting the
erroneous information of Mr. Macasaet. In the afternoon of September 24, 2007, ACA Marquez
held a press conference and released to the media copies of Delis letter to respondent
Macasaet, her affidavit, and the written statement of Mme. Justice Santiago.[17]
On September 25, 2007, the Court En Banc issued a resolution ordering Amado P. Macasaet to
EXPLAIN why no sanction should be imposed on him for indirect contempt of court in
accordance with Section 3(d), (Rule 71) of the 1997 Rules of Civil Procedure, within five (5) days
from receipt hereof. From October 30, 2007 to March 10, 2008, the Investigating Committee held
hearings and gathered affidavits and testimonies from the parties concerned and concluded that
the bribery story was UNBELIEVABLE. Finding sufficient basis to hold respondent Macasaet in
indirect contempt of court, the Committee recommended: The Committee finds that the
statements of respondent Amado P. Macasaet about the Supreme Court in his Business Circuit
columns in the September 18-21, 2007 issues of the newspaper Malaya, maligning and
degrading the Supreme Court and tending directly or indirectly to impede, obstruct, or degrade
the administration of justice, to be utterly unjustified.
WHEREFORE, the Committee believes there exist valid grounds for this Honorable Court, if it is
so minded, to cite Amado P. Macasaet for indirect contempt within the purview of Section 3(d),
Rule 71 of the 1997 Rules of Civil Procedure.
The respondent is now invoking his right to press freedom as a defense.
RATIO: Accordingly, it has been consistently held that, while freedom of speech, of expression,
and of the press are at the core of civil liberties and have to be protected at all costs for the sake
of democracy, these freedoms are not absolute. For, if left unbridled, they have the tendency to
be abused and can translate to licenses, which could lead to disorder and anarchy.
Thus, in Gonzales v. Commission on Elections, this Court ruled that [f]rom the language of the
specific constitutional provision, it would appear that the right (to free expression) is not
susceptible of any limitation. No law may be passed abridging the freedom of speech and of the
press. The realities of life in a complex society preclude, however, a literal interpretation.
Freedom of expression is not absolute. It would be too much to insist that, at all times and under
all circumstances, it should remain unfettered and unrestrained. There are other societal values
that press for recognition.
In Lagunzad v. Vda. De Gonzales,[47] it was held that while the right of freedom of expression
occupies a preferred position in the hierarchy of civil liberties, it is not without limitations. As the
revered Holmes once said, the limitation on ones right to extend ones fist is when it hits the nose
of another.
Indeed, freedom of speech cannot be absolute and unconditional. In legal, political, and
philosophical contexts, it is always regarded as liable to be overridden by important
countervailing interests, such as state security, public order, safety of individual citizens,
protection of reputation, and due process of law, which encompasses not only the right to a fair
trial, but also the preservation of public confidence in the proper administration of justice.
As early as 1930, this Court, speaking through Mr. Justice George Malcolm, declared that [a]s
important as is the maintenance of an unmuzzled press and the free exercise of the rights of the
citizen is the maintenance of the independence of the judiciary.
In Zaldivar v. Gonzalez,[49] the Court said that freedom of speech and expression, like all
constitutional freedoms, is not absolute and that freedom of expression needs on occasion to be
adjusted to and accommodated with requirements of equally important public interests. One of
these fundamental public interests is the maintenance of the integrity and orderly functioning of
the administration of justice. There is no antinomy between free expression and the integrity of
the system of administering justice. For the protection and maintenance of freedom of
expression itself can be secured only within the context of a functioning and orderly system of
dispensing justice, within the context, in other words, of viable independent institutions for
delivery of justice which are accepted by the general community.
As Mr. Justice Felix Frankfurter put it:
x x x A free press is not to be preferred to an independent judiciary, nor an independent judiciary
to a free press. Neither has primacy over the other; both are indispensable to a free society.
The freedom of the press in itself presupposes an independent judiciary through which that
freedom may, if necessary, be vindicated. And one of the potent means for assuring judges their
independence is a free press. Even the major international and regional human rights
instruments of civil and political rights the International Covenant on Civil and Political Rights
(ICCPR),[51] the European Convention on Human Rights (ECHR),[52] the American Convention
on Human Rights (ACHR),[53] and the African Charter on Human and Peoples Rights
(ACHPR)[54] protect both freedom of expression and the administration of justice. Freedom of
expression is protected under Article 19 of the ICCPR
(1) Everyone shall have the right to hold opinions without interference;
(2) Everyone shall have the right to freedom of expression; this right shall include freedom
to seek, receive and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through any other media of his
choice.
However, Article 19 of the ICCPR is made subject to Article 14(1), which guarantees the right of
individuals to be equal before the courts and tribunals and be entitled to a fair x x x hearing by a
competent, independent and impartial tribunal, where [t]he press and the public may be
excluded from all or part of a trial for reasons of morals, public order (order public) or national
security in a democratic society, or when the interest of the private lives of the Parties so
requires, or to the extent strictly necessary in the opinion of the court in special circumstances
where publicity would prejudice the interests of justice x x x.
Article 10(2) of the ECHR goes further by explicitly mentioning the maintenance of the authority
and impartiality of the judiciary
The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are prescribed by law and
necessary in a democratic society, in the interests of national security, territorial integrity or
public safety, for the prevention of disorder or crime, for the protection of health morals, for the
protection of the reputation or rights of others, for preventing disclosure of information received
in confidence, or for maintaining the authority and impartiality of the judiciary. Judges have an
affirmative duty to defend and uphold the integrity and independence of the judiciary. The
courts need to be able to sanction those who obstruct their processes. The judiciary itself must
continue to be a voice that explains and preserves its own independence. The respect accorded
to judges is an adjunct of the social-contract necessity for impartial judges in the creation of a
civil society.
Each of us has important responsibilities in a constitutional democracy. We, judges, will continue
to discharge our judicial functions with fairness. We urge all and sundry to abide by theirs. We
need to respect each other. As the golden rule goes let us not do to others what we do not want
others to do to us. "Igalang natin ang isat-isa. Huwag nating gawin sa iba ang ayaw nating gawin
nila sa atin." Given the gravity of respondent Macasaets improper conduct, coupled with the
recalcitrant manner in which he responded when confronted with the reality of his wrongdoing, a
penalty of fine in the amount of P20,000.00 would be right and reasonable.
REYES V. CA
FACTS: Petitioner, Rev. Fr. Robert P. Reyes, arrested in the Manila Peninsula Hotel siege on
November 30, 2007. In the morning of November 30, 2007, petitioner together with fifty (50)
others, were brought to Camp Crame to await inquest proceedings. In the evening of the same
day, the Department of Justice (DOJ) Panel of Prosecutors, composed of Emmanuel Y. Velasco,
Phillip L. dela Cruz and Aristotle M. Reyes, conducted inquest proceedings to ascertain whether
or not there was probable cause to hold petitioner and the others for trial on charges of Rebellion
and/or Inciting to Rebellion. On December 1, 2007, upon the request of the Department of
Interior and Local Government (DILG), respondent DOJ Secretary Raul Gonzales issued Hold
Departure Order (HDO) No. 45 ordering respondent Commissioner of Immigration to include in
the Hold Departure List of the Bureau of Immigration and Deportation (BID) the name of
petitioner and 49 others relative to the aforementioned case in the interest of national security
and public safety.
On December 2, 2007, after finding probable cause against petitioner and 36 others for the
crime of Rebellion under Article 134 of the Revised Penal Code, the DOJ Panel of Prosecutors
led an Information docketed as I.S. No. 2007-1045 before the Regional Trial Court, Branch 150
of Makati City. On December 7, 2007, petitioner led a Motion for Judicial Determination of
Probable Cause and Release of the Accused Fr. Reyes Upon Recognizance asserting that the
DOJ panel failed to produce any evidence indicating his specific participation in the crime
charged; and that under the Constitution, the determination of probable cause must be made
personally by a judge.
RTC: issued an order dismissing the charge for Rebellion against petitioner and 17 others for
lack of probable cause
On December 18, 2007, petitioner's counsel Atty. Francisco L. Chavez wrote the DOJ Secretary
requesting the lifting of HDO No. 45 in view of the dismissal of Criminal Case No. 07-3126. On
even date, Secretary Gonzales replied to petitioner's letter stating that the DOJ could not act on
petitioner's request until Atty. Chavez's right to represent petitioner is settled in view of the fact
that a certain Atty. J. V. Bautista representing himself as counsel of petitioner had also written a
letter to the DOJ.
On January 3, 2008, petitioner led the instant petition claiming that despite the dismissal of the
rebellion case against petitioner, HDO No. 45 still subsists; that on December 19, 2007,
petitioner was held by BID officials at the NAIA as his name is included in the Hold Departure
List; that had it not been for the timely intervention of petitioner's counsel, petitioner would not
have been able to take his scheduled flight to Hong Kong; that on December 26, 2007, petitioner
was able to y back to the Philippines from Hong Kong but every time petitioner would present
himself at the NAIA for his flights abroad, he stands to be detained and interrogated by BID
officers because of the continued inclusion of his name in the Hold Departure List; and that the
Secretary of Justice has not acted on his request for the lifting of HDO No. 45. Petitioner further
maintained that immediate recourse to the Supreme Court for the availment of the writ is exigent
as the continued restraint on petitioner's right to travel is illegal.
The petition for a writ of amparo is anchored on the ground that respondents violated petitioner's
constitutional right to travel. Petitioner argues that the DOJ Secretary has no power to issue a
Hold Departure Order (HDO) and the subject HDO No. 45 has no legal basis since Criminal
Case No. 07-3126 has already been dismissed.
CA: rendered the assailed Decision dismissing the petition and denying the privilege of the writ
of amparo
ISSUE/S: WON petitioner’s right to liberty has been violated or threatened by the issuance of the
subject HDO, which would entitle him to the privily of the writ of amparo? — NO
RULING: Petition is DISMISSED. The assailed Decision of the CA is hereby AFFIRMED.
Section 1 of the Rule on the Writ of Amparo provides:
“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.”
In the case at bar, the petitioner invokes this extraordinary remedy of the writ of amparo for the
protection of his right to travel. He insists that he is entitled to the protection covered by the Rule
on the Writ of Amparo because the HDO is a continuing actual restraint on his right to travel. The
Court is thus called upon to rule whether or not the right to travel is covered by the Rule on the
Writ of Amparo.
The rights that fall within the protective mantle of the Writ of Amparo under Section 1 of the
Rules thereon are the following: (1) right to life; (2) right to liberty; and (3) right to security.
Here, the restriction on petitioner's right to travel as a consequence of the pendency of the
criminal case led against him was not unlawful. Petitioner has also failed to establish that his
right to travel was impaired in the manner and to the extent that it amounted to a serious
violation of his right to life, liberty and security, for which there exists no readily available legal
recourse or remedy.
Also, the Court finds the direct recourse to this Court inappropriate, considering the provision of
Section 22 of the Rule on the Writ of Amparo which reads:
“Section 22. Effect of Filing of a Criminal Action. — When a criminal action has been
commenced, no separate petition for the writ shall be led. 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."
Pursuant to the aforementioned Section 22, petitioner should have led with the RTC-Makati a
motion to lift HDO No. 45 in Criminal Case No. 07-3126. Petitioner, however, did not file in the
RTC-Makati a motion to lift the DOJ's HDO, as his coaccused did in the same criminal case.
Petitioner argues that it was not the RTC-Makati but the DOJ that issued the said HDO, and that
it is his intention not to limit his remedy to the lifting of the HDO but also to question before this
Court the constitutionality of the power of the DOJ Secretary to issue an HDO.
Even in civil cases pending before the trial courts, the Court has no authority to separately and
directly intervene through the writ of amparo.
Additionally, petitioner is seeking the extraordinary writ of amparo due to his apprehension that
the DOJ may deny his motion to lift the HDO. Petitioner’s apprehension is at best merely
speculative. Thus, he has failed to show any clear threat to his right to liberty actionable through
a petition for a writ of amparo. The absence of an actual controversy also renders it unnecessary
for us on this occasion to pass upon the constitutionality of DOJ Circular No. 17, Series of 1998
(Prescribing Rules and Regulations Governing the Issuance of Hold Departure Orders); and
Circular No. 18, Series of 2007 (Prescribing Rules and Regulations Governing the Issuance and
Implementation of Watchlist Orders and for Other Purposes).
DISINI, JR. V SECRETARY OF JUSTICE
These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175,
the Cybercrime Prevention Act of 2012, unconstitutional and void.
FACTS: The cybercrime law aims to regulate access to and use of the cyberspace. Using his
laptop or computer, a person can connect to the internet, a system that links him to other
computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information that he needs for
research, study, amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and videos, for the general public
or for special audiences like associates, classmates, or friends and read postings from them;
3. Advertise and promote goods or services and make purchases and payments;
4. Inquire and do business with institutional entities like government agencies, banks, stock
exchanges, trade houses, credit card companies, public utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-mail address or telephone.
This is cyberspace, a system that accommodates millions and billions of simultaneous and
ongoing individual accesses to and uses of the internet. The cyberspace is a boon to the need of
the current generation for greater information and facility of communication. But all is not well
with the system since it could not filter out a number of persons of ill will who would want to use
cyberspace technology for mischiefs and crimes. One of them can, for instance, avail himself of
the system to unjustly ruin the reputation of another or bully the latter by posting defamatory
statements against him that people can read.
And because linking with the internet opens up a user to communications from others, the ill-
motivated can use the cyberspace for committing theft by hacking into or surreptitiously
accessing his bank account or credit card or defrauding him through false representations. The
wicked can use the cyberspace, too, for illicit tracking in sex or for exposing to pornography
guileless children who have access to the internet. For this reason, the government has a
legitimate right to regulate the use of cyberspace and contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak or cause havoc to the
computer systems and networks of indispensable or highly useful institutions as well as to the
laptop or computer programs and memories of innocent individuals. They accomplish this by
sending electronic viruses or virtual dynamites that destroy those computer systems, networks,
programs, and memories. The government certainly has the duty and the right to prevent these
tomfooleries from happening and punish their perpetrators, hence the Cybercrime Prevention
Act. But petitioners claim that the means adopted by the cybercrime law for regulating
undesirable cyberspace activities violate certain of their constitutional rights. The government of
course asserts that the law merely seeks to reasonably put order into cyberspace activities,
punish wrongdoings, and prevent hurtful attacks on the system.
Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013
the Court extended the original 120-day temporary restraining order (TRO) that it earlier issued
on October 9, 2012, enjoining respondent government agencies from implementing the
cybercrime law until further orders.
ISSUE/S: WON
- the some provisions of the cybercrime law are unconstitutional for regarding certain acts as
crimes and impose penalties for their commission as well as provisions that would enable the
government to track down and penalize violators?
- the related RPC Arts/ 353, 354, 361, and 362 on the crime of libel is constitutional?
RULING: The Court declares: VOID for being UNCONSTITUTIONAL:
- Sec. 4 ( c ) (3): that penalizes posting of unsolicited commercial communications;
- Sec. 12 that authorizes the collection or recording of traffic data in real-time; and
- Sec. 19 of the same Act that authorizes the Department of Justice to restrict or block access to
suspected Computer Data.
Sec. 4 ( c ) (3) - Cybercrime Offenses. — The following acts constitute the offense of cybercrime
punishable under this Act:
(c) Content-related Offenses:
(3) Unsolicited Commercial Communications. — The transmission of commercial electronic
communication with the use of computer system which seeks to advertise, sell, or offer for sale
products and services are prohibited unless:
(i) There is prior affirmative consent from the recipient; or CaASIc
(ii) The primary intent of the communication is for service and/or administrative announcements from
the sender to its existing users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple, valid, and reliable way for the
recipient to reject receipt of further commercial electronic messages (opt-out) from the same source;
(bb) The commercial electronic communication does not purposely disguise the source of the
electronic message; and
(cc) The commercial electronic communication does not purposely include misleading information in
any part of the
message in order to induce the recipients to read the message.
This provision penalizes the transmission of unsolicited commercial communications, also
known as "spam." The term "spam" surfaced in early internet chat rooms and interactive fantasy
games. One who repeats the same sentence or comment was said to be making a “spam." The
Government, represented by the Solicitor General, points out that unsolicited commercial
communications or spams are a nuisance that wastes the storage and network capacities of
internet service providers, reduces the efficiency of commerce and technology, and interferes
with the owner's peaceful enjoyment of his property. Transmitting spams amounts to trespass to
one's privacy since the person sending out spams enters the recipient's domain without prior
permission. The OSG contends that commercial speech enjoys less protection in law. But, firstly,
the government presents no basis for holding that unsolicited electronic ads reduce the
"efficiency of computers." Secondly, people, before the arrival of the age of computers, have
already been receiving such unsolicited ads by mail. These have never been outlawed as
nuisance since people might have interest in such ads. What matters is that the recipient has the
option of not opening or reading these mail ads. That is true with spams. Their recipients always
have the option to delete or not to read them
To prohibit the transmission of unsolicited ads would deny a person the right to read his emails,
even unsolicited commercial ads addressed to him. Commercial speech is a separate category
of speech which is not accorded the same level of protection as that given to other
constitutionally guaranteed forms of expression but is nonetheless entitled to protection. The
State cannot rob him of this right without violating the constitutionally guaranteed freedom of
expression. Unsolicited advertisements are legitimate forms of expression.
Sec. 12 - Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall
be authorized to collect or record by technical or electronic means traffic data in real-time associated
with specified communications transmitted by means of a computer system.
Traffic data refer only to the communication's origin, destination, route, time, date, size, duration,
or type of underlying service, but not content, nor identities. All other data to be collected or
seized or disclosed will require a court warrant.
Service providers are required to cooperate and assist law enforcement authorities in the
collection or recording of the above-stated information. The court warrant required under this
section shall only be issued or granted upon written application and the examination under oath
or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there
are reasonable grounds to believe that any of the crimes enumerated hereinabove has been
committed, or is being committed, or is about to be committed; (2) that there are reasonable
grounds to believe that evidence that will be obtained is essential to the conviction of any person
for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other
means readily available for obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to collect or record track
data in real time as tending to curtail civil liberties or provide opportunities for official abuse.
They claim that data showing where digital messages come from, what kind they are, and where
they are destined need not be incriminating to their senders or recipients before they are to be
protected. Petitioners invoke the right of every individual to privacy and to be protected from
government snooping into the messages or information that they send to one another.
Petitioners point out that the provisions of Section 12 are too broad and do not provide ample
safeguards against crossing legal boundaries and invading the people's right to privacy. The
concern is understandable. Indeed, the Court recognizes in Morfe v. Mutuc that certain
constitutional guarantees work together to create zones of privacy wherein governmental powers
may not intrude, and that there exists an independent constitutional right of privacy. Such right to
be left alone has been regarded as the beginning of all freedoms.
Since the validity of the cybercrime law is being challenged, not in relation to its application to a
particular person or group, petitioners' challenge to Section 12 applies to all information and
communications technology (ICT) users, meaning the large segment of the population who use
all sorts of electronic devices to communicate with one another. Consequently, the expectation
of privacy is to be measured from the general public’s point of view. Without reasonable
expectation of privacy, the right to it would have no basis in fact. Section 12 empowers law
enforcement authorities, "with due cause," to collect or record by technical or electronic means
traffic data in real-time. Petitioners point out that the phrase "due cause" has no precedent in law
or jurisprudence and that whether there is due cause or not is left to the discretion of the police.
Indeed, courts are able to save vague provisions of law through statutory construction. But the
cybercrime law, dealing with a novel situation, fails to hint at the meaning it intends for the
phrase "due cause." The Solicitor General suggests that "due cause" should mean "just reason
or motive” and "adherence to a lawful procedure." But the Court cannot draw this meaning since
Section 12 does not even bother to relate the collection of data to the probable commission of a
particular crime. It just says, "with due cause," thus justifying a general gathering of data. It is
akin to the use of a general search warrant that the Constitution prohibits.
Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-
vagueness doctrine and the overbreadth doctrine. These doctrines however, have been
consistently held by this Court to apply only to free speech cases. But Section 12 on its own
neither regulates nor punishes any type of speech. Therefore, such analysis is unnecessary.
This Court is mindful that advances in technology allow the government and kindred institutions
to monitor individuals and place them under surveillance in ways that have previously been
impractical or even impossible. "All the forces of a technological age . . . operate to narrow the
area of privacy and facilitate intrusions into it. In modern terms, the capacity to maintain and
support this enclave of private life marks the difference between a democratic and a totalitarian
society.” The Court must ensure that laws seeking to take advantage of these technologies be
written with specificity and definiteness as to ensure respect for the rights that the Constitution
guarantees.
Section 19 - Restricting or Blocking Access to Computer Data. — When a computer data is
prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to
restrict or block access to such computer data.
Petitioners contest Section 19 in that it sties freedom of expression and violates the right against
unreasonable searches and seizures. The Solicitor General concedes that this provision may be
unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy
itself that Section 19 indeed violates the freedom and right mentioned.
Computer data may refer to entire programs or lines of code, including malware, as well as files
that contain texts, images, audio, or video recordings. Without having to go into a lengthy
discussion of property rights in the digital space, it is indisputable that computer data, produced
or created by their writers or authors may constitute personal property. Consequently, they are
protected from unreasonable searches and seizures, whether while stored in their personal
computers or in the service provider's systems.
Section 2, Article III of the 1987 Constitution provides that the right to be secure in one's papers
and effects against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable. Further, it states that no search warrant shall issue except upon probable
cause to be determined personally by the judge. Here, the Government, in effect, seizes and
places the computer data under its control and disposition without a warrant. The Department of
Justice order cannot substitute for judicial search warrant.
The content of the computer data can also constitute speech. In such a case, Section 19
operates as a restriction on the freedom of expression over cyberspace. Certainly not all forms
of speech are protected. Legislature may, within constitutional bounds, declare certain kinds of
expression as illegal. But for an executive officer to seize content alleged to be unprotected
without any judicial warrant, it is not enough for him to be of the opinion that such content
violates some law, for to do so would make him judge, jury, and executioner all rolled into one.
Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential
guidelines established to determine the validity of restrictions on speech. Restraints on free
speech are generally evaluated on one of or a combination of three tests: the dangerous
tendency doctrine, the balancing of interest test, and the clear and present danger rule. Section
19, however, merely requires that the data to be blocked be found prima facie in violation of any
provision of the cybercrime law. Taking Section 6 into consideration, this can actually be made
to apply in relation to any penal provision. It does not take into consideration any of the three
tests mentioned above. The Court is therefore compelled to strike down Section 19 for being
violative of the constitutional guarantees to freedom of expression and against unreasonable
searches and seizures. The rest are valid and constitutional.
CENTRAL BANK EMPLOYEES V. BSP and EXEC SEC
FACTS: On July 3, 1993, R.A. No. 7653 (the New Central Bank Act) took effect. It abolished the
old Central Bank of the Philippines, and created a new BSP. On June 8, 2001, almost eight
years after the effectivity of R.A. No. 7653, petitioner Central Bank (now BSP) Employees
Association, Inc., filed a petition for prohibition against BSP and the Executive Secretary of the
Office of the President, to restrain respondents from further implementing the last proviso in
Section 15(c), Article II of R.A. No. 7653, on the ground that it is unconstitutional.
Article II, Section 15(c) of R.A. No. 7653 provides:
Section 15. Exercise of Authority - In the exercise of its authority, the Monetary Board shall:
(c) establish a human resource management system which shall govern the selection, hiring,
appointment, transfer, promotion, or dismissal of all personnel. Such system shall aim to establish
professionalism and excellence at all levels of the Bangko Sentral in accordance with sound principles
of management.
A compensation structure, based on job evaluation studies and wage surveys and subject to the
Boards approval, shall be instituted as an integral component of the Bangko Sentrals human resource
development program: Provided, That the Monetary Board shall make its own system conform as
closely as possible with the principles provided for under Republic Act No. 6758 [Salary
Standardization Act]. Provided, however, That compensation and wage structure of employees whose
positions fall under salary grade 19 and below shall be in accordance with the rates prescribed under
Republic Act No. 6758.
The thrust of petitioners challenge is that the above proviso makes an unconstitutional cut
between two classes of employees in the BSP, viz: (1) the BSP officers or those exempted from
the coverage of the Salary Standardization Law (SSL) (exempt class); and (2) the rank-and-file
(Salary Grade [SG] 19 and below), or those not exempted from the coverage of the SSL (non-
exempt class). It is contended that this classification is a classic case of class legislation,
allegedly not based on substantial distinctions which make real differences, but solely on the SG
of the BSP personnels position. Petitioner also claims that it is not germane to the purposes of
Section 15(c), Article II of R.A. No. 7653, the most important of which is to establish
professionalism and excellence at all levels in the BSP. Petitioner offers the following sub-set of
arguments:
a. the legislative history of R.A. No. 7653 shows that the questioned proviso does not appear in the
original and amended versions of House Bill No. 7037, nor in the original version of Senate Bill No.
1235;
b. subjecting the compensation of the BSP rank-and-file employees to the rate prescribed by the SSL
actually defeats the purpose of the law of establishing professionalism and excellence at all levels in
the BSP;
c. the assailed proviso was the product of amendments introduced during the deliberation of Senate
Bill No. 1235, without showing its relevance to the objectives of the law, and even admitted by one
senator as discriminatory against low-salaried employees of the BSP;
d. GSIS, LBP, DBP and SSS personnel are all exempted from the coverage of the SSL; thus within the
class of rank-and-file personnel of government financial institutions (GFIs), the BSP rank-and-file are
also discriminated upon; and
e. the assailed proviso has caused the demoralization among the BSP rank-and-file and resulted in the
gross disparity between their compensation and that of the BSP officers.
In sum, petitioner posits that the classification is not reasonable but arbitrary and capricious, and
violates the equal protection clause of the Constitution. Petitioner also stresses: (a) that R.A. No.
7653 has a separability clause, which will allow the declaration of the unconstitutionality of the
proviso in question without affecting the other provisions; and (b) the urgency and propriety of
the petition, as some 2,994 BSP rank-and-file employees have been prejudiced since 1994
when the proviso was implemented. Petitioner concludes that: (1) since the inequitable proviso
has no force and effect of law, respondents implementation of such amounts to lack of
jurisdiction; and (2) it has no appeal nor any other plain, speedy and adequate remedy in the
ordinary course except through this petition for prohibition, which this Court should take
cognizance of, considering the transcendental importance of the legal issue involved.
Respondent BSP, in its comment, contends that the provision does not violate the equal
protection clause and can stand the constitutional test, provided it is construed in harmony with
other provisions of the same law, such as fiscal and administrative autonomy of BSP, and the
mandate of the Monetary Board to establish professionalism and excellence at all levels in
accordance with sound principles of management. The Solicitor General, on behalf of
respondent Executive Secretary, also defends the validity of the provision. Quite simplistically,
he argues that the classification is based on actual and real differentiation, even as it adheres to
the enunciated policy of R.A. No. 7653 to establish professionalism and excellence within the
BSP subject to prevailing laws and policies of the national government.
ISSUE: WON the proviso is unconstitutional
HELD: Yes, In the case at bar, the challenged proviso operates on the basis of the salary grade
or officer-employee status. It is akin to a distinction based on economic class and status, with
the higher grades as recipients of a benefit specifically withheld from the lower grades. Officers
of the BSP now receive higher compensation packages that are competitive with the industry,
while the poorer, low-salaried employees are limited to the rates prescribed by the SSL. The
implications are quite disturbing: BSP rank-and-file employees are paid the strictly regimented
rates of the SSL while employees higher in rank - possessing higher and better education and
opportunities for career advancement - are given higher compensation packages to entice them
to stay. Considering that majority, if not all, the rank-and-file employees consist of people whose
status and rank in life are less and limited, especially in terms of job marketability, it is they - and
not the officers - who have the real economic and financial need for the adjustment This is in
accord with the policy of the Constitution "to free the people from poverty, provide adequate
social services, extend to them a decent standard of living, and improve the quality of life for
all.[108] Any act of Congress that runs counter to this constitutional desideratum deserves strict
scrutiny by this Court before it can pass muster.
To be sure, the BSP rank-and-file employees merit greater concern from this Court. They
represent the more impotent rank-and-file government employees who, unlike employees in the
private sector, have no specific right to organize as a collective bargaining unit and negotiate for
better terms and conditions of employment, nor the power to hold a strike to protest unfair labor
practices. Not only are they impotent as a labor unit, but their efficacy to lobby in Congress is
almost nil as R.A. No. 7653 effectively isolated them from the other GFI rank-and-file in
compensation. These BSP rank-and-file employees represent the politically powerless and they
should not be compelled to seek a political solution to their unequal and iniquitous treatment.
Indeed, they have waited for many years for the legislature to act. They cannot be asked to wait
some more for discrimination cannot be given any waiting time. Unless the equal protection
clause of the Constitution is a mere platitude, it is the Courts duty to save them from reasonless
discrimination.
EQUALITY UNDER INTERNATIONAL LAW
The principle of equality has long been recognized under international law. Article 1 of the
Universal Declaration of Human Rights proclaims that all human beings are born free and equal
in dignity and rights. Non-discrimination, together with equality before the law and equal
protection of the law without any discrimination, constitutes basic principles in the protection of
human rights. Most, if not all, international human rights instruments include some prohibition on
discrimination and/or provisions about equality. The general international provisions pertinent to
discrimination and/or equality are the International Covenant on Civil and Political Rights
(ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the
International Convention on the Elimination of all Forms of Racial Discrimination (CERD); the
Convention on the Elimination of all Forms of Discrimination against Women (CEDAW); and the
Convention on the Rights of the Child (CRC).
The equality provisions in these instruments do not merely function as traditional "first
generation" rights, commonly viewed as concerned only with constraining rather than requiring
State action. Article 26 of the ICCPR requires guarantee[s] of equal and effective
protection against discrimination while Articles 1 and 14 of the American and European
Conventions oblige States Parties to ensure ... the full and free exercise of [the rights
guaranteed] ... without any discrimination and to secure without discrimination the
enjoyment of the rights guaranteed. These provisions impose a measure of positive obligation
on States Parties to take steps to eradicate discrimination. In the employment field, basic
detailed minimum standards ensuring equality and prevention of discrimination, are laid down in
the ICESCR and in a very large number of Conventions administered by the International Labour
Organisation, a United Nations body. Additionally, many of the other international and regional
human rights instruments have specific provisions relating to employment.
The United Nations Human Rights Committee has also gone beyond the earlier tendency to
view the prohibition against discrimination (Article 26) as confined to the ICCPR rights. In Broeks
and Zwaan-de Vries,[88] the issue before the Committee was whether discriminatory provisions
in the Dutch Unemployment Benefits Act (WWV) fell within the scope of Article 26. The Dutch
government submitted that discrimination in social security benefit provision was not within the
scope of Article 26, as the right was contained in the ICESCR and not the ICCPR. They
accepted that Article 26 could go beyond the rights contained in the Covenant to other civil and
political rights, such as discrimination in the field of taxation, but contended that Article 26 did not
extend to the social, economic, and cultural rights contained in ICESCR. The Committee
rejected this argument. In its view, Article 26 applied to rights beyond the Covenant including the
rights in other international treaties such as the right to social security found in ICESCR:
Although Article 26 requires that legislation should prohibit discrimination, it does not of itself contain
any obligation with respect to the matters that may be provided for by legislation. Thus it does not, for
example, require any state to enact legislation to provide for social security. However, when such
legislation is adopted in the exercise of a State's sovereign power, then such legislation must comply
with Article 26 of the Covenant.
Breaches of the right to equal protection occur directly or indirectly. A classification may be
struck down if it has the purpose or effect of violating the right to equal protection. International
law recognizes that discrimination may occur indirectly, as the Human Rights Committee[90]
took into account the definitions of discrimination adopted by CERD and CEDAW in declaring
that:
discrimination as used in the [ICCPR] should be understood to imply any distinction, exclusion,
restriction or preference which is based on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status, and which has the
purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an
equal footing, of all rights and freedoms.
Thus, the two-tier analysis made in the case at bar of the challenged provision, and its
conclusion of unconstitutionality by subsequent operation, are in cadence and in consonance
with the progressive trend of other jurisdictions and in international law. There should be no
hesitation in using the equal protection clause as a major cutting edge to eliminate every
conceivable irrational discrimination in our society. Indeed, the social justice imperatives in the
Constitution, coupled with the special status and protection afforded to labor, compel this
approach.
International law, which springs from general principles of law, likewise proscribes
discrimination. General principles of law include principles of equity, i.e., the general principles of
fairness and justice, based on the test of what is reasonable. The Universal Declaration of
Human Rights, the International Covenant on Economic, Social, and Cultural Rights, the
International Convention on the Elimination of All Forms of Racial Discrimination, the Convention
against Discrimination in Education, the Convention (No. 111) Concerning Discrimination in
Respect of Employment and Occupation - all embody the general principle against
discrimination, the very antithesis of fairness and justice. The Philippines, through its
Constitution, has incorporated this principle as part of its national laws.
In the workplace, where the relations between capital and labor are often skewed in favor of
capital, inequality and discrimination by the employer are all the more reprehensible. The
Constitution specifically provides that labor is entitled to "humane conditions of work." These
conditions are not restricted to the physical workplace - the factory, the office or the field - but
include as well the manner by which employers treat their employees.
Notably, the International Covenant on Economic, Social, and Cultural Rights, in Article 7
thereof, provides:
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of
just and [favorable] conditions of work, which ensure, in particular:
a. Remuneration which provides all workers, as a minimum, with:
i. Fair wages and equal remuneration for work of equal value without distinction of any kind, in
particular women being guaranteed conditions of work not inferior to those enjoyed by men, with
equal pay for equal work;
The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal
truism of "equal pay for equal work." Persons who work with substantially equal qualifications,
skill, effort and responsibility, under similar conditions, should be paid similar salaries. Congress
retains its wide discretion in providing for a valid classification, and its policies should be
accorded recognition and respect by the courts of justice except when they run afoul of the
Constitution. The deference stops where the classification violates a fundamental right, or
prejudices persons accorded special protection by the Constitution. When these violations arise,
this Court must discharge its primary role as the vanguard of constitutional guaranties, and
require a stricter and more exacting adherence to constitutional limitations. Rational basis should
not suffice.
Admittedly, the view that prejudice to persons accorded special protection by the Constitution
requires a stricter judicial scrutiny finds no support in American or English jurisprudence.
Nevertheless, these foreign decisions and authorities are not per se controlling in this
jurisdiction. At best, they are persuasive and have been used to support many of our
decisions.[95] We should not place undue and fawning reliance upon them and regard them as
indispensable mental crutches without which we cannot come to our own decisions through the
employment of our own endowments. We live in a different ambience and must decide our own
problems in the light of our own interests and needs, and of our qualities and even
idiosyncrasies as a people, and always with our own concept of law and justice.[96] Our laws
must be construed in accordance with the intention of our own lawmakers and such intent may
be deduced from the language of each law and the context of other local legislation related
thereto. More importantly, they must be construed to serve our own public interest which is the
be-all and the end-all of all our laws. And it need not be stressed that our public interest is
distinct and different from others.
CONVENTION ON THE RIGHTS OF THE CHILD
PREAMBLE
The States Parties to the present Convention,
Considering that, in accordance with the principles proclaimed in the Charter of the United
Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members
of the human family is the foundation of freedom, justice and peace in the world,
Bearing in mind that the peoples of the United Nations have, in the Charter, reaffirmed their faith
in fundamental human rights and in the dignity and worth of the human person, and have
determined to promote social progress and better standards of life in larger freedom,
Recognizing that the United Nations has, in the Universal Declaration of Human Rights and in
the International Covenants on Human Rights, proclaimed and agreed that everyone is entitled
to all the rights and freedoms set forth therein, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin, property, birth
or other status,
Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed
that childhood is entitled to special care and assistance,
Convinced that the family, as the fundamental group of society and the natural environment for
the growth and well-being of all its members and particularly children, should be afforded the
necessary protection and assistance so that it can fully assume its responsibilities within the
community,
Recognizing that the child, for the full and harmonious development of his or her personality,
should grow up in a family environment, in an atmosphere of happiness, love and
understanding,
Considering that the child should be fully prepared to live an individual life in society, and
brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in
particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity,
Bearing in mind that the need to extend particular care to the child has been stated in the
Geneva Declaration of the Rights of the Child of 1924 and in the Declaration of the Rights of the
Child adopted by the General Assembly on 20 November 1959 and recognized in the Universal
Declaration of Human Rights, in the International Covenant on Civil and Political Rights (in
particular in articles 23 and 24), in the International Covenant on Economic, Social and Cultural
Rights (in particular in article 10) and in the statutes and relevant instruments of specialized
agencies and international organizations concerned with the welfare of children,
Bearing in mind that, as indicated in the Declaration of the Rights of the Child, "the child, by
reason of his physical and mental immaturity, needs special safeguards and care, including
appropriate legal protection, before as well as after birth",
Recalling the provisions of the Declaration on Social and Legal Principles relating to the
Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption
Nationally and Internationally; the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (The Beijing Rules); and the Declaration on the Protection of
Women and Children in Emergency and Armed Conflict, Recognizing that, in all countries in the
world, there are children living in exceptionally difficult conditions, and that such children need
special consideration,
Taking due account of the importance of the traditions and cultural values of each people for the
protection and harmonious development of the child, Recognizing the importance of international
co-operation for improving the living conditions of children in every country, in particular in the
developing countries
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES V. DUQUE
FACTS: Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking
to nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and
Regulations of Executive Order No. 51, Otherwise Known as The "Milk Code," Relevant
International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR).
Petitioner posits that the RIRR is not valid as it contains provisions that are not constitutional and
go beyond the law it is supposed to implement.
Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of
the Department of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded
as a co-respondent since respondents issued the questioned RIRR in their capacity as officials
of said executive agency. Executive Order No. 51 (Milk Code) was issued by President Corazon
Aquino on October 28, 1986 by virtue of the legislative powers granted to the president under
the Freedom Constitution. One of the preambular clauses of the Milk Code states that the law
seeks to give effect to Article 112 of the International Code of Marketing of Breastmilk
Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From 1982
to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should be
supported, promoted and protected, hence, it should be ensured that nutrition and health claims
are not permitted for breastmilk substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the Child.
Article 24 of said instrument provides that State Parties should take appropriate measures to
diminish infant and child mortality, and ensure that all segments of society, specially parents and
children, are informed of the advantages of breastfeeding. On May 15, 2006, the DOH issued
herein assailed RIRR which was to take effect on July 7, 2006. However, on June 28, 2006,
petitioner, representing its members that are manufacturers of breastmilk substitutes, filed the
present Petition for Certiorari and Prohibition with Prayer for the Issuance of a Temporary
Restraining Order (TRO) or Writ of Preliminary Injunction.
ISSUE: WON RIRR is unconstitutional
HELD: Petition partly meritorious. Petitioner assails the RIRR for allegedly going beyond the
provisions of the Milk Code, thereby amending and expanding the coverage of said law. The
defense of the DOH is that the RIRR implements not only the Milk Code but also various
international instruments regarding infant and young child nutrition. It is respondents' position
that said international instruments are deemed part of the law of the land and therefore the DOH
may implement them through the RIRR.
The Court notes that the following international instruments invoked by respondents, namely: (1)
The United Nations Convention on the Rights of the Child; (2) The International Covenant
on Economic, Social and Cultural Rights; and (3) the Convention on the Elimination of All Forms
of Discrimination Against Women, only provide in general terms that steps must be taken by
State Parties to diminish infant and child mortality and inform society of the advantages of
breastfeeding, ensure the health and well-being of families, and ensure that women are provided
with services and nutrition in connection with pregnancy and lactation. Said instruments do not
contain specific provisions regarding the use or marketing of breastmilk substitutes.
However
Section 11 of the RIRR, to wit:
SECTION 11. Prohibition – No advertising, promotions, sponsorships, or marketing materials
and activities for breastmilk substitutes intended for infants and young children up to twenty-four
(24) months, shall be allowed, because they tend to convey or give subliminal messages or
impressions that undermine breastmilk and breastfeeding or otherwise exaggerate breastmilk
substitutes and/or replacements, as well as related products covered within the scope of this
Code.
prohibits advertising, promotions, sponsorships or marketing materials and activities for
breastmilk substitutes in line with the RIRR’s declaration of principle under Section 4(f), to wit:
SECTION 4. Declaration of Principles –
(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and other
related products are prohibited.
Sections 4(f), 11 and 46 of Administrative Order No. 2006-0012 dated May 12, 2006 are
declared NULL and VOID for being ultra vires. the DOH has the significant responsibility to
translate into operational terms the standards set forth in Sections 5, 8, and 10 of the Milk Code,
by which the IAC shall screen advertising, promotional, or other marketing materials. That there
be no absolute ban on milk products.
Respondents submit that the national policy on infant and young child feeding is embodied in
A.O. No. 2005-0014, dated May 23, 2005. Basically, the Administrative Order declared the
following policy guidelines: (1) ideal breastfeeding practices, such as early initiation of
breastfeeding, exclusive breastfeeding for the first six months, extended breastfeeding up to two
years and beyond; (2) appropriate complementary feeding, which is to start at age six months;
(3) micronutrient supplementation; (4) universal salt iodization; (5) the exercise of other feeding
options; and (6) feeding in exceptionally difficult circumstances. Indeed, the primacy of
breastfeeding for children is emphasized as a national health policy. However, nowhere in A.O.
No. 2005-0014 is it declared that as part of such health policy, the advertisement or
promotion of breastmilk substitutes should be absolutely prohibited.
Petitioner refers to Sections 4(f), 4(i), 5(w), 11, 22, 32, 46, and 52 as the provisions that
suppress the trade of milk and, thus, violate the due process clause of the Constitution. In this
case, petitioner failed to show that the proscription of milk manufacturers’ participation in any
policymaking body (Section 4(i)), classes and seminars for women and children (Section 22); the
giving of assistance, support and logistics or training (Section 32); and the giving of donations
(Section 52) would unreasonably hamper the trade of breastmilk substitutes. Petitioner has not
established that the proscribed activities are indispensable to the trade of breastmilk substitutes.
Petitioner failed to demonstrate that the aforementioned provisions of the RIRR are
unreasonable and oppressive for being in restraint of trade. Petitioner also failed to convince the
Court that Section 5(w) of the RIRR is unreasonable and oppressive.
 BAYAN MUNA V. ROMULO 641 SCRA 244
FACTS: Bayan Muna is a registered party-list group established to represent the marginalized
sectors of society. Respondent Blas F. Ople was the Secretary of Foreign Affairs during the
period material to this case. Respondent Alberto Romulo was impleaded as then Executive
Secretary. Having a key determinative bearing on this case is the Rome Statute establishing the
International Criminal Court (ICC) with the power to exercise its jurisdiction over persons for the
most serious crimes of international concern and shall be complementary to the national criminal
jurisdictions. The serious crimes adverted to cover those considered grave under international
law, such as genocide, crimes against humanity, war crimes, and crimes of aggression. The RP,
through Charge dAffaires Enrique A. Manalo, signed the Rome Statute which is subject to
ratification, acceptance or approval by the signatory states. Only 92 out of the 139 signatory
countries appear to have completed the ratification, approval and concurrence process. The
Philippines is not among the 92. Ambassador Francis J. Ricciardone sent US Embassy Note to
DFA proposing the terms of the non-surrender bilateral agreement between the USA and the
RP. Via Exchange of Notes, the RP, represented by then DFA Secretary Ople, agreed with and
accepted the US proposals embodied under the US Embassy Note adverted to and put in effect
the Agreement with the US government. The Agreement aims to protect what it refers to and
defines as persons of the RP and US from frivolous and harassment suits that might be brought
against them in international tribunals. In response to a query of then Solicitor General Benipayo
on the status of the non-surrender agreement, Ambassador Ricciardone replied that the
exchange of diplomatic notes constituted a legally binding agreement under international law;
and that, under US law, the said agreement did not require the advice and consent of the US
Senate. In this proceeding, petitioner imputes grave abuse of discretion to respondents in
concluding and ratifying the Agreement and prays that it be struck down as unconstitutional, or
at least declared as without force and effect. For their part, respondents question petitioners
standing to maintain a suit and counter that the Agreement, being in the nature of an executive
agreement, does not require Senate concurrence for its efficacy. And for reasons detailed in
their comment, respondents assert the constitutionality of the Agreement.
ISSUE:
1. WON of the RP-US Non-Surrender Agreement is valid and binding the RP
2. WON the ICC found in the Rome Statute is declaratory of customary international law
HELD:
1. YES. Petitioners contention, perhaps taken unaware of certain well-recognized international
doctrines, practices, and jargons is untenable. One of these is the doctrine of incorporation, as
expressed in Section 2, Article II of the Constitution, wherein the Philippines adopts the generally
accepted principles of international law and international jurisprudence as part of the law of the
land and adheres to the policy of peace, cooperation, and amity with all nations. An exchange of
notes falls into the category of inter-governmental agreements, which is an internationally
accepted form of international agreement. The United Nations Treaty Collections (Treaty
Reference Guide) defines the term as follows:
An exchange of notes is a record of a routine agreement, that has many similarities with the private law
contract. The agreement consists of the exchange of two documents, each of the parties being in the
possession of the one signed by the representative of the other. Under the usual procedure, the
accepting State repeats the text of the offering State to record its assent. The signatories of the letters
may be government Ministers, diplomats or departmental heads. The technique of exchange of notes
is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process
of legislative approval.
In another perspective, the terms exchange of notes and executive agreements have been used
interchangeably, exchange of notes being considered a form of executive agreement that
becomes binding through executive action. On the other hand, executive agreements concluded
by the President sometimes take the form of exchange of notes and at other times that of more
formal documents denominated agreements or protocols. Despite lack of actual domestic
legislation, the US notably follows the doctrine of incorporation. As early as 1900, Justice Gray in
The Paquete Habana case already held international law as part of the law of the US, to wit:
International law is part of our law, and must be ascertained and administered by the courts of justice
of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their
determination. For this purpose, where there is no treaty and no controlling executive or legislative act
or judicial decision, resort must be had to the customs and usages of civilized nations, and, as
evidence of these, to the works of jurists and commentators who by years of labor, research, and
experience have made themselves peculiarly well acquainted with the subjects of which they treat.
Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning
what the law ought to be, but for the trustworthy evidence of what the law really is.
Thus, a person can be tried in the US for an international crime despite the lack of domestic
legislation. The US doubtless recognizes international law as part of the law of the land,
necessarily including international crimes, even without any local statute. In fact, years later, US
courts would apply international law as a source of criminal liability despite the lack of a local
statute criminalizing it as such.
2. NO. Customary international law or international custom is a source of international law as
stated in the Statute of the ICJ. It is defined as the general and consistent practice of states
recognized and followed by them from a sense of legal obligation. In order to establish the
customary status of a particular norm, two elements must concur: State practice, the objective
element; and opinio juris sive necessitates, the subjective element.
State practice refers to the continuous repetition of the same or similar kind of acts or norms by
States. It is demonstrated upon the existence of the following elements: (1) generality; (2)
uniformity and consistency; and (3) duration. While, opinio juris, the psychological element,
requires that the state practice or norm be carried out in such a way, as to be evidence of a
belief that this practice is rendered obligatory by the existence of a rule of law requiring it.
The term jus cogens means the compelling law. Corollary, a jus cogens norm holds the highest
hierarchical position among all other customary norms and principles. As a result, jus cogens
norms are deemed peremptory and non-derogable. When applied to international crimes, jus
cogens crimes have been deemed so fundamental to the existence of a just international legal
order that states cannot derogate from them, even by agreement. These jus cogens crimes
relate to the principle of universal jurisdiction, i.e., any state may exercise jurisdiction over an
individual who commits certain heinous and widely condemned offenses, even when no other
recognized basis for jurisdiction exists. Therefore, even with the current lack of domestic
legislation on the part of the US, it still has both the doctrine of incorporation and universal
jurisdiction to try these crimes. Consequently, no matter how hard one insists, the ICC, as an
international tribunal, found in the Rome Statute is not declaratory of customary international
law.
VINUYA v. ROMULO
FACTS: Petitioners are all members of the MALAYA LOLAS, an organization established for the
purpose of providing aid to the victims of rape by Japanese military forces in the Philippines
during the Second World War. Petitioners narrate that during the Second World War, the
Japanese army attacked villages and systematically raped the women as part of the destruction
of the village. Their communities were bombed, houses were looted and burned, and civilians
were publicly tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the women
and held them in houses or cells, where they were repeatedly raped, beaten, and abused by
Japanese soldiers. As a result of the actions of their Japanese tormentors, the petitioners have
spent their lives in misery, having endured physical injuries, pain and disability, and mental and
emotional suffering.
Petitioners claim that since 1998, they have approached the Executive Department through the
DOJ, DFA, and OSG, requesting assistance in filing a claim against the Japanese officials and
military officers who ordered the establishment of the comfort women stations in the Philippines.
However, officials of the Executive Department declined to assist the petitioners, and took the
position that the individual claims of the comfort women for compensation had already been fully
satisfied by Japans compliance with the Peace Treaty between the Philippines and Japan.
Petitioners argue that the general waiver of claims made by the Philippine government in the
Treaty of Peace with Japan is void. They claim that the comfort women system established by
Japan, and the brutal rape and enslavement of petitioners constituted a crime against humanity,
sexual slavery, and torture. They allege that the prohibition against these international crimes is
jus cogens norms from which no derogation is possible; as such, in waiving the claims of Filipina
comfort women and failing to espouse their complaints against Japan, the Philippine government
is in breach of its legal obligation not to afford impunity for crimes against humanity. Finally,
petitioners assert that the Philippine governments acceptance of the apologies made by Japan
as well as funds from the Asian Womens Fund (AWF) were contrary to international law.
Respondents maintain that all claims of the Philippines and its nationals relative to the war were
dealt with in the San Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement
of 1956.[6] In addition, respondents argue that the apologies made by Japan[8] have been
satisfactory, and that Japan had addressed the individual claims of the women through the
atonement money paid by the Asian Womens Fund.
ISSUE: WON the Executive Department committed grave abuse of discretion in not espousing
petitioners claims for official apology and other forms of reparations against Japan – NO.
determination would mean an assessment of the foreign policy judgments by a coordinate
political branch to which authority to make that judgment has been constitutionally committed.
In any event, it cannot reasonably be maintained that the Philippine government was without
authority to negotiate the Treaty of Peace with Japan. And it is equally true that, since time
immemorial, when negotiating peace accords and settling international claims:
governments have dealt with private claims as their own, treating them as national assets, and as
counters, `chips', in international bargaining. Settlement agreements have lumped, or linked, claims
deriving from private debts with others that were intergovernmental in origin, and concessions in regard
to one category of claims might be set off against concessions in the other, or against larger political
considerations unrelated to debts.
Indeed, except as an agreement might otherwise provide, international settlements generally
wipe out the underlying private claims, thereby terminating any recourse under domestic law. In
Ware v. Hylton,[50] a case brought by a British subject to recover a debt confiscated by the
Commonwealth of Virginia during the war, Justice Chase wrote:

RULING: From a Domestic Law Perspective, the Executive Department has the exclusive
prerogative to determine whether to espouse petitioners claims against Japan.
The question whether the Philippine government should espouse claims of its nationals against
a foreign government is a foreign relations matter, the authority for which is demonstrably
committed by our Constitution not to the courts but to the political branches. In this case, the
Executive Department has already decided that it is to the best interest of the country to waive
all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The
wisdom of such decision is not for the courts to question. Neither could petitioners herein assail
the said determination by the Executive Department via the instant petition for certiorari.
I apprehend that the treaty of peace abolishes the subject of the war, and that after peace is
concluded, neither the matter in dispute, nor the conduct of either party, during the war, can ever be
revived, or brought into contest again. All violences, injuries, or damages sustained by the government,
or people of either, during the war, are buried in oblivion; and all those things are implied by the very
treaty of peace; and therefore not necessary to be expressed. Hence it follows, that the restitution of, or
compensation for, British property confiscated, or extinguished, during the war, by any of the United
States, could only be provided for by the treaty of peace; and if there had been no provision, respecting
these subjects, in the treaty, they could not be agitated after the treaty, by the British government,
much less by her subjects in courts of justice.

In the seminal case of US v. Curtiss-Wright Export Corp.,[45] the US Supreme Court held that
[t]he President is the sole organ of the nation in its external relations, and its sole representative
with foreign relations. It is quite apparent that if, in the maintenance of our international relations,
embarrassment -- perhaps serious embarrassment -- is to be avoided and success for our aims
achieved, congressional legislation which is to be made effective through negotiation and inquiry
within the international field must often accord to the President a degree of discretion and
freedom from statutory restriction which would not be admissible where domestic affairs alone
involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions
which prevail in foreign countries, and especially is this true in time of war. He has his
confidential sources of information. He has his agents in the form of diplomatic, consular and
other officials.
This ruling has been incorporated in our jurisprudence through Bayan v.Executive Secretary
and Pimentel v. Executive Secretary; its overreaching principle was, perhaps, best articulated In
(now Chief) Justice Punos dissent in Secretary of Justice v. Lantion:

The conduct of foreign relations is full of complexities and consequences, sometimes with life and
death significance to the nation especially in times of war. It can only be entrusted to that department of
government which can act on the basis of the best available information and can decide with
decisiveness. x x x It is also the President who possesses the most comprehensive and the most
confidential information about foreign countries for our diplomatic and consular officials regularly brief
him on meaningful events all over the world. He has also unlimited access to ultra-sensitive military
intelligence data. In fine, the presidential role in foreign affairs is dominant and the President is
traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay,
validity of his actions are adjudged under less stringent standards, lest their judicial repudiation lead to
breach of an international obligation, rupture of state relations, forfeiture of confidence, national
embarrassment and a plethora of other problems with equally undesirable consequences.

The Executive Department has determined that taking up petitioners cause would be inimical to
our countrys foreign policy interests, and could disrupt our relations with Japan, thereby creating
serious implications for stability in this region. For us to overturn the Executive Departments