CONSTITUTIONAL LAW REVIEW (2017)

LIBERTY OF ABODE/RIGHT TO TRAVEL Marcos vs. Manglapus

On Residual Power of the President
Two constitutional rights
Marcos family was asking for formal permission from the national government that they be
1. Liberty of Abode
allowed to return in the Philippines (1989). The request was denied, hence they filed a case
2. Right to Travel
before the Supreme Court

Government’s argument: Under article VI, there is no constitutional right to return to own
Liberty of Abode country
- Personal choice that should be respected
- Right to choose residence SC: yes, that is true, but it remains to be a human right under UDHR and ICCPR which provides
for the human right of a person to return to his own country. Even if this human right is not
stated in section 6, we are bound by human rights law and we follow the doctrine of
Right to Travel incorporation
- Freedom of locomotion for whatever means
The SC recognizes the right of Marcos to return but also the residual power of the President to
bar them from coming back. Moreover, the 1987 constitution is very young at that time. If
These rights are subject to certain rules and exception under the Constitution
allowed to return, some loyalists may cause destabilization of the country.
 For abode: subject to limits as may be prescribed by law
 To travel: can be impaired in certain cases
1. National security Limitations
2. Public safety  A hold departure order, watch-out list. Are these policies constitutional?
3. Public health, as may be provided by law Note: only RTC may issue hold-departure order
Yes, the constitutional right to travel is not absolute. It may be impaired in the interest of
national security, public safety, public health
Vivencio vs. Lucban  Isolation of foreign citizens who are suspected of being infected with diseases.
Mayor of Manila ordered that all prostitutes, pick up girls, call girls within Ermita will be rounded  Requirement of citizens to secure a passport whenever they will go out of the country as
up forcefully. They are forced to a big boat headed to Davao city. matter of administrative regulation recognized by international law
 Passport convention law mandates all states to follow the passport system
SC: Not constitutional.  Even heads of states, diplomatic officers are not exempted from securing a
passport.
Law defines power. No official, no matter how high, is above the law. Lukban committed a grave
abuse of discretion by deporting the prostitutes to a new domicile against their will. There is no RIGHT TO INFORMATION
law expressly authorizing his action. On the contrary, there is a law punishing public officials,
not expressly authorized by law or regulation, who compels any person to change his residence Sec 28, Article II
Furthermore, the prostitutes are still, as citizens of the Philippines, entitled to the same rights, as
stipulated in the Bill of Rights, as every other citizen. Their choice of profession should not be a SECTION 28. Subject to reasonable conditions prescribed by law, the State adopts and implements
cause for discrimination. It may make some, like Lukban, quite uncomfortable but it does not a policy of full public disclosure of all its transactions involving public interest.
authorize anyone to compel said prostitutes to isolate themselves from the rest of the human
race. These women have been deprived of their liberty by being exiled to Davao without even Section 7, Article III
being given the opportunity to collect their belongings or, worse, without even consenting to
being transported to Mindanao. SECTION 7. The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents, and papers pertaining to official acts, transactions, or
Three violations: decisions, as well as to government research data used as basis for policy development, shall be
1. Due process
afforded the citizen, subject to such limitations as may be provided by law.
2. Equal protection
3. Right to travel and freedom of abode Notes
 Almost all provisions of Article II are non self-executing thus requires enabling law
 Provisions of Article III: self-executing even in the absence of a law.
 Article II— subject to conditions prescribed by law
 Article III— also requires a law

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 There is no conflict between these two constitutional provisions. They both require an Notes on the Quiz:
enabling law before you can invoke these constitutional rights.  Power of eminent domain: review! Specific purpose: for poor and the landless.
 Patrimonial properties of the State: can still be appropriated.
Even in the absence of an enabling law, there are restrictions of this right. These are instances  Properties of the state acquired through private funds such as through
wherein you cannot invoke this constitutional right with or without a law : donation
 All other properties which we call as legua communal cannot be the subject
1. National security matters/Executive privileges of further communal: properties that belong to the state since time
2. Trade secrets immemorial
3. Banking transactions  When to value the property for just compensation: time of actual taking. It
 Under local bank secrecy law, there are two ways to secure bank information is more fair and reasonable.
of another person Between filing and taking, whichever will come first.
 Consent
 Impeachment, bribery, graft and corruption charges against a person
 Foreign Currency Deposit Act: NON-IMPAIRMENT CLAUSE
 only if there is consent coming from the depositor.
4. Diplomatic correspondence/communications Section 10, Article III
 Considered as state secrets
5. Deliberations of the supreme court No law impairing the obligation of contracts shall be passed
 The most junior justice is the note-taker as a matter of tradition; no
stenographers  Covers all kinds of contracts
 Includes contracts entered into by the state subject to qualification, whether
Antolin vs. Domondon July 5 2010  Between private individuals
Can you examine questions and answers of government-sanctioned exams?  Private individual and government
 Between governmental entities
Antolin, a student who took the CPA exam, requested the chair of the board of accountancy to
provide him with the answers given, his answers, and the questions asked. Antolin filed a
mandamus case to the SC. When does a law impair the obligation of a contract?
1. If it changes the terms and conditions of a legal contract, either as to the time and mode
SC: a citizen has a right to demand copies of these government-sanctioned examinations which of performance
will include the questions and the answers. It is covered under the constitutional right. These are 2. If it imposes new conditions or dispenses with those expressed in the original contract
information on matters of public concern. However, Antolin failed to implead the PRC. The case 3. If it authorizes for its satisfaction different terms and conditions not contemplated by the
is dismissed. parties

PRC is an indispensable party since it administers the examination. Illustrations

(1) Franchise given by the government. Is it a contract? Yes
(2) A service agreement entered by the government for the maintenance of the MRT system.
Section 8, Article III: related to freedom of speech Is it a contract? Yes
SECTION 8. The right of the people, including those employed in the public and private sectors, to
form unions, associations, or societies for purposes not contrary to law shall not be abridged. Certain concessions given by the government, franchises, licenses, are they also covered by this constitutional provision?

 Even employees of the government are entitled to this right to form unions, associations Alvarez vs. Pico
or societies for purposes not contrary to law  Forest maintenance agreement entered into by the government
 Fraternities and sororities practicing hazing: violates the law  Mining agreements
 Timber license agreements
 Anything that has something to do with exploitation of the natural resources
Q: Is there prohibition on the part of the employees of the government to participate in rallies and strikes?

A: If there is statutory prohibition, they cannot attend rallies and strikes in the interest of public Can the government unilaterally revoke these contracts without violation of the non-impairment clause?
service. Under CSC rules, if it will affect public service, such that the rally or strike will be undertaken
Even the government is bound by the terms and conditions of contracts it voluntarily entered
during official working hours, it is not allowed. But if you want to attend a rally on your free time and
into, however, the non-impairment clause is not considered superior over the police power of
on a Sunday, there is no statutory prohibition.
the state.

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If there is a police power justification for purposes of promoting the general welfare, the
government can remiss from its obligation to the contract.
SECTION 12
FOUR IMPORTANT RIGHTS: MIRANDA WARNINGS
However, in People vs. Mahinay, the SC expanded these rights.
People vs. Mahinay
It is high-time to educate our law-enforcement agencies who neglect either by ignorance or
indifference the so-called Miranda rights which had become insufficient and which the Court must
update in the light of new legal developments:
1. The person arrested, detained, invited or under custodial investigation must be
informed in a language known to and understood by him of the reason for the arrest
and he must be shown the warrant of arrest, if any; Every other warnings, information
or communication must be in a language known to and understood by said person;
2. He must be warned that he has a right to remain silent and that any statement he
makes may be used as evidence against him;
3. He must be informed that he has the right to be assisted at all times and have the
presence of an independent and competent lawyer, preferably of his own choice;
4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer,
one will be provided for him; and that a lawyer may also be engaged by any person in
his behalf, or may be appointed by the court upon petition of the person arrested or
one acting in his behalf;
5. That whether or not the person arrested has a lawyer, he must be informed that no
custodial investigation in any form shall be conducted except in the presence of his
counsel or after a valid waiver has been made;
6. The person arrested must be informed that, at any time, he has the right to
communicate or confer by the most expedient means telephone, radio, letter or
messenger with his lawyer (either retained or appointed), any member of his immediate
family, or any medical doctor, priest or minister chosen by him or by any one from his
immediate family or by his counsel, or be visited by/confer with duly accredited
national or international non-government organization. It shall be the responsibility of
the officer to ensure that this is accomplished;
7. He must be informed that he has the right to waive any of said rights provided it is
made voluntarily, knowingly and intelligently and ensure that he understood the same;
8. In addition, if the person arrested waives his right to a lawyer, he must be informed that
it must be done in writing AND in the presence of counsel, otherwise, he must be
warned that the waiver is void even if he insist on his waiver and chooses to speak;
9. That the person arrested must be informed that he may indicate in any manner at any
time or stage of the process that he does not wish to be questioned with warning that
once he makes such indication, the police may not interrogate him if the same had not
yet commenced, or the interrogation must ceased if it has already begun;
10. The person arrested must be informed that his initial waiver of his right to remain silent,
the right to counsel or any of his rights does not bar him from invoking it at any time
during the process, regardless of whether he may have answered some questions or
volunteered some statements;
11. He must also be informed that any statement or evidence, as the case may be, obtained
in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in
part, shall be inadmissible in evidence.
Miranda Rights under the Constitution
1. Right to remain silent
2. Right to have a competent and independent counsel preferably the choice of the
respondent or accused
3. Right be provided with services of counsel if the person cannot afford the services of one
4. Right to be informed of these rights.
When are these rights available?
1. After a person has been taken into custody of in the course of custodial
investigation
Custodial Investigation
 When the questioning of the police officer ceases to be a general inquiry about the
commission of a crime and it will now focus on an individual as the possible suspect of the
crime.
 Two important components:
a. When it ceases to be a general inquiry on the commission of a crime
b. It focuses now on the individual as suspect of the crime
 House to house, general inquiry: not yet custodial investigation
 But if you are invited to the precinct to explain, or you are interviewed to elicit details
leading to you as the possible malefactor of the crime, this is now custodial investigation.
If the police will commence, these constitutional rights are now available.
 It should be state actors or state agents who will pursue the questioning under custodial
investigation
 These rights will not apply if the one questioning you is a private person like the media.
Q: What if the one who initiated the custodial investigation is a Baranggay Tanod?
A: it is custodial investigation
People vs. Nauga March 5 2010
They are considered state actors or state agents. Since they are agents of persons in authority,
they are covered by the constitutional rights if they will conduct custodial investigation.
2. When a person is otherwise deprived of his freedom of action in any significant
way
 Whenever a person was arrested, these rights are already available.
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RIGHT TO BAIL
3. When the investigation is being conducted by any government office with respect
to a criminal offense
When is bail a matter of right and discretion?
4. Whenever a person will be asked to sign arrest reports, booking sheets and When is bail not a matter of right and discretion?
inventory of confiscated items.
 Drugs: police cannot compel the accused to sign the inventory sheets of the
confiscated drugs Matter of Right
 Estipona case: plea-bargaining is already allowed.  Before conviction, for all offenses under the jurisdiction of the MTC

When are these rights NOT available?

Matter of Discretion
1. Ordinary police line-up
2. Administrative proceedings or investigations  After conviction, it is now a matter of discretion
 Only on criminal offense
 But in administrative case, it includes right to due process If crime is punishable by reclusion perpetua, life imprisonment or death, is it a matter of right of right or discretion?
3. Communications made to private persons  Matter of discretion— if the evidence of guilt is not strong.
 These are considered non-bailable offenses. But if the evidence of guilt is not strong,
then you can petition for bail.
Are these constitutional rights subject to waiver?
 YES  During Appeal, it is now a matter of discretion
Except: right to be informed of these rights
 Before waiver of these rights, you need to be informed first.
 Should you choose to waive your rights, there is a constitutional requirement Principles:
 Writing  Members of armed forces undergoing court martial proceedings
 In the presence of the counsel  Not covered by constitutional right
 Covered by military code of discipline. Not included here is the right to bail
Q: You invoke your right to remain silent. Can this silence be taken as an implied admission?  Suspension of privilege of writ of habeas corpus
A: NO. If the person is properly apprised of this right, there would be no adverse inferences that  Shall not affect the right bail
could be taken against him under the rules of evidence.  Excessive bail
 Not allowed
Recall in rules of evidence—Admission by silence: it is part of human instinct to deny an unjustified  Principle not written under Rules of Criminal Procedure:
claim. Court may consider other factors in granting bail for capital offenses

Enrile Case
Competent and Independent Counsel Judicial accommodation: he has shown respect to the court over the years by voluntarily
surrendering. Also he was granted bail for health reasons.
Q: Government lawyer assisted an accused. Is he an independent and competent counsel?
A: Yes.
Factors
 Competent and Independent Counsel: A lawyer who is free from outside influences 1. Ability to post bail
particularly those investigating the criminal act. 2. Nature of the offense
 There should be no close association between the lawyer and the one investigating the 3. Penalty imposed by the law
offense. 4. Character and reputation of the accused
 Main guide: freedom from outside influence 5. Health of the accused
6. Strength of the evidence
7. Probability of appearing at the trial
8. Forfeiture of previous bail bonds
9. Whether fugitive from justice when arrested
10. If accused is under bail bond

Note: the person claiming the right to bail may be granted such bail if the person is arrested or in
actual custody or jurisdiction of the court.

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 In a criminal case, court acquires jurisdiction: Three stages in criminal trial wherein the presence of accused is necessary
a. Upon his arrest 1. Arraignment
b. Upon his voluntary surrender to the jurisdiction of the court 2. Identification
3. Promulgation of judgment
Is the right to bail available in deportation proceedings?
 Yes. In deportation proceedings, there is deprivation of liberty. Trial in absentia
 Only allowed if the accused was already arraigned
 If not arrested nor arraigned, the criminal case will be archived
Is the right to bail available in extradition proceedings?
 If the accused is already arraigned and he jumped bail, trial will proceed.
 Yes. In extradition proceedings, bail is also available.
Right of accused to be notified
RIGHTS OF AN ACCUSED CHARGED WITH A CRIMINAL  To be given copies of all orders of the court
 To be notified of any stages of the proceeding
OFFENSE
 Presupposes that a case is already filed in court
 In the earlier rights, no criminal case was yet filed but it is under investigation of the Right of accused to secure compulsory processes of court
police  Whether duces tecum or ad testificandum

1. Criminal due process Right to counsel

2. Presumption of innocence
 If party appears without counsel, judge should ask first if he has the intention to secure
3. To be heard by himself and counsel
the services of his own counsel
4. To be informed of the nature and cause of the accusation against him
 If he says that he has no means or capacity, it is incumbent in the part of the judge to
5. To have a speedy, impartial and public trial
provide him with a counsel
6. To meet the witnesses face-to-face
 PAO
7. The right to compulsory processes to secure attendance of witness and production of
evidence in his behalf  Counsel de-officio

Important rule of criminal due process: for the court to have jurisdiction first. Q: can you file a bill of particulars in criminal case?
 Jurisdiction over the person of the accused A: There is constitutional right for to be notified, particularly if the information is vague.
 Jurisdiction over the offense
 Jurisdiction over the penalty to be imposed Right to be informed of the offense charged
 An information should properly state the crime involved in a case which would include
Jurisprudence: criminal due process will require this acquisition of jurisdiction by the trial
the necessary elements of the crime charged,
court. Accused can only be convicted if first the court acquired jurisdiction.  Obligation of prosecution to properly state crimes charged, acts constituting the events,
including the aggravating circumstances if any.
Presumption of Innocence  A mere approximation of the date is enough
 Purpose: to equalize the playing field between the accused and the state because the  But the place where crime is committed should be alleged in the information because of
state has all the power to cause the conviction of the accused the concept of Territorial jurisdiction
 Part of this presumption is the burden on the part of the prosecution to prove the guilt  EXCEPT: in continuing crimes where one or several elements happen in
of the accused with proof beyond reasonable doubt. different jurisdictions.
 Will it require absolute certainty?  This right is important so that the accused can study his options.
Proof beyond reasonable doubt only requires moral certainty on the part of the judge
rendering the decision
 EQUIPOSE RULE: if the evidence of the prosecution and the accused is evenly balanced, Right to speedy, impartial and public trial
the constitutional duty of the court is to tilt the scales of justice in favor of the accused. It  After last pleading and at time of submission to decision, court has 90 days to decide the
only means that the prosecution failed to discharge its burden of proving the guilt of the case.
accused beyond reasonable doubt.  Expanded by speedy trial act (180 days)
 Impartial trial: requires cold neutrality of an impartial judge because this is part of
substantive due process.
Right to be heard by himself and counsel  Public trial: presentation of evidence or testimony should be in open court, constitution
 Includes right of accused to be present at every stage of the criminal trial uses the phrase “public trial”
 This can be waived by the accused—trial in absentia  A trial that can be observed by the general public.

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 It is a public proceeding wherein even those not directly involved in the case
can observed, listen to the testimony of witnesses
Q: What is in camera proceedings as distinguished from in curia proceedings?
A: In curia: open court
In camera: hearing is conducted in the chambers of the judge
Q:Is in camera proceedings allowed?
A: YES.
1. Under rules of examination of child witnesses
2. Alternative dispute resolution proceedings
3. Judicial dispute resolutions
Dacayan vs. Pamintuan
Can the judge conduct in camera proceeding without advice or presence of the other party?
No. It will be violation of due process. All of the parties shall be present in the in camera
proceedings. They shall also be assisted by their counsels.
Even in in camera proceedings, all parties shall be properly notified about the intention of the
judge to conduct in camera proceedings. The judge has no authority to call a party without
notifying the adverse party.
Q: Delay in the proceedings— Is there violation of speedy trial?
A: Yes. But this must be invoked with clean hands by the accused. If the accused himself or the
counsel were the reason for the delay, he cannot invoke this right.
Right to meet witnesses face to face
 Manifestation of the right to cross-examination
 Cross examination in a judicial trial is part of due process, particularly substantive.
 In an administrative case, cross examination is not part of due process. The main essence
of due process here is merely opportunity to be heard. Decision may be based on
affidavits, memorandum, without necessarily subjecting witnesses to right of cross-
examination.
Cross examination may not be had even in judicial proceedings
1. Dying declaration
 Exception to hearsay rule. But the one who heard the examination may be cross-
examined
2. Testimony of a child under the special rules on the examination of a child witness
 Face to face trial is not really required when the witness is a child.
 The court may conduct live-link television testimony of child witness. Particularly
if it determines that it is traumatic for the child witness if he will be subjected to
a rigorous examination such as a cross examination.
 Rules on child witnesses
 Facilitator will interpret the questions to the child.
 Support person
Right to Speedy Trial
SECTION 14. Article III
(1) No person shall be held to answer for a criminal offense without due process of law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature
and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the
witnesses face to face, and to have compulsory process to secure the attendance of witnesses
and the production of evidence in his behalf. However, after arraignment, trial may proceed
notwithstanding the absence of the accused provided that he has been duly notified and his
failure to appear is unjustifiable.
SECTION 16. Article III
All persons shall have the right to a speedy disposition of their cases before all judicial,
quasi-judicial, or administrative bodies.
Section 14: limited to judicial proceedings.
Section 16: even in quasi-judicial and administrative bodies, any person may asked that case be
decided with dispatch
 Delay contemplated by both sections: vexatious, capricious, unjustified postponements.
RIGHT AGAINST SELF-INCRIMINATION
SECTION 17. No person shall be compelled to be a witness against himself.
 Limited to testimonial compulsions
 Mere mechanical acts, like presenting the accused in the police line up, requiring him to
submit body specimens, not covered by right against testimonial compulsion
In a criminal case, the accused will testify as his own witness. Is it possible?
Yes. He can testify for his own defenses.
Is there waiver for his right against self-incrimination?
Yes. The prosecution is also entitled to due process the accused may be cross-examined by the
prosecution as to any matters that he testified in the direct examination or matters that are directly
related to the case.
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 As long as it is relevant even if not touched in direct examination, accused may be
examined in that aspect.
Also includes that right that no person can be detained by reason of religious beliefs.

American rule and English rule on cross examination EXCEPTIONS:

American Rule: Examine witness on matters he testified on cross examination 1. Compulsory military service in times of war is not covered by this right.
2. Hard labor if one is convicted of a crime and is in service of his sentence.
English rule: all matters as long as it will pass the requirement of relevancy.
3. SOLE requiring the employees to return back to work after an illegal strike.
 We adopt both rules in our jurisdiction.
 Involuntary servitude is modern day slavery
 We punish acts such as human trafficking because it is tantamount to involuntary
Q:What if the criminal case is murder, the accused testified and on cross examination. The prosecutor asks “Mr.
servitude
witness, is it not a fact that you were also charged with robbery that is pending?” Can you object to this?

A: Yes. The prosecution can only examine the accused in so far as the present charged, the actual
crime subject matter of trial. You cannot interject another case especially if such is still pending. In
PROHIBITION AGAINST CRUEL, DEGRADING AND
this aspect, he can still claim his right against self incrimination as to the other charged not INHUMANE PUNISHMENTS
decided with finality.

Q:What if he was convicted already with finality?

A: All witnesses should answer about the fact of his previous conviction.
Final conviction has a bearing on credibility. Rules on evidence requires that any person who takes
witness stand shall answer for previous conviction.
Note: Right against self incrimination can also be invoked in civil case, administrative case, special
proceedings, and legislative proceedings, and all other cases.
Q: Can you compel a witness to testify?
A: Yes, if he signs a contract to be a state witness.
SECTION 19. Article III
(1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted.
Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes,
the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to
reclusion perpetua.
(2) The employment of physical, psychological, or degrading punishment against any prisoner or
detainee or the use of substandard or inadequate penal facilities under subhuman conditions
shall be dealt with by law.

An accused (who is the least guilty) agreeing to become a state witness is a contract between him
Anti-Torture Act
Two kinds of torture
and the state in exchange of transactional or fruit immunity. In exchange of his testimony, he will
not be prosecuted. He will be given immunity. If he violates this, he may be compelled. If despite 1. Physical
compulsion he will not testify, he will now be included as one of the accused. 2. Mental

RIGHT AGAINST INVOLUNTARY SERVITUDE Constitutionality of death penalty

SECTION 18. Article III
(1) No person shall be detained solely by reason of his political beliefs and aspirations.
(2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof
the party shall have been duly convicted.
Echagaray vs. Republic
GR. No. 132601 January 19, 1999
Is it tantamount to cruel, degrading and inhumane punishment?
In order to maintain a civilized society, the state must be willing to do an unpleasant. There is
a need to enforce death penalty as a deterrent to the commission of the crime.
Violation of ICCPR: demands for abolition of death penalty

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NON-IMPRISONMENT FOR DEBT  Entering into a plea (either guilty or not guilty)
 If the accused does not want to enter into a plea: it is now the
responsibility of judge to enter a plea of not guilty for the accused.
 Formal response of the accused to the crime charged.
SECTION 20. Article III  Legal remedies of the accused before arraignment
 Motion to quash: on grounds specified by the rules
No person shall be imprisoned for debt or non-payment of a poll tax. o If information is now quashed, is there a first
jeopardy? NO. There was no valid arraignment.
 Ask for preliminary investigation
o In the preliminary investigation, he found no
Poll Tax: tax that is levied on each citizen to raise monies to support the government. probable cause. He withdrew the information. There
is NO FIRST JEOPARDY, since there was no valid
Kind of debt under Section 20 arraignment
 Contractual debt as distinguished from fraudulent debt.  If there is valid arraignment, the case will stick to the accused. Even in his
 Contractual debt is when there is liability to pay money by breach of a contract, express absence, the case may proceed.
or implied.
 All other sources of liabilities are not within the scope of the prohibition. 2. The first jeopardy was validly terminated

Does not cover fraudulent debt  Instances of valid termination

 You committed a crime so you cannot invoke this right a. Judgment of Acquittal
 We punish estafa, swindling. Issuing bouncing checks b. Final Conviction
 If you use fraud and deceit such that others part with their money, there is c. Dismissal without express consent of the accused.
criminal liability.  Provisional dismissal of a criminal case: it is important that the counsel
 What is contemplated is valid contractual debt and not fraudulent debt. seeks for the consent of the accused
d. Judgment that the liability of the accused is only civil and not criminal
 Tantamount to an acquittal
DOUBLE JEOPARDY e. Grant of demurrer of evidence
 Tantamount to an acquittal
SECTION 21. Article III  Not subject to appeal
 File for leave of court to file a demurrer to evidence.
No person shall be twice put in jeopardy of punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or acquittal under either shall constitute a When? After order of the court admitting or denying the objects of evidence of the
bar to another prosecution for the same act. prosecution.

 Importance of acquittal: not subject for further appeal

How many days? 5 days
If granted, can you file the leave simultaneously with the demurrer? Yes. In practice it is
 An accused cannot be vexed twice with the same criminal offense. This is a time-
honored ruling of all democratic states. done for a speedy process, under the presumption that the leave of court will be
granted.
 Reason: it is unfair in the part of the accused.
It was granted. Evidence of prosecution is insufficient to warrant conviction. It is
 In all litigations, as well as criminal cases, it should end. We cannot try a case in
tantamount to an acquittal.
perpetuity.
 You cannot file the same criminal case against the accused for the second time
3. There must be a second jeopardy
 Second jeopardy:
Elements of Double Jeopardy a. If there is exact identity between offenses charged in the first and second cases.
1. First jeopardy b. If one offense is an attempt to commit or a frustration of the other offense.
c. If one offense is necessarily included in the original charge.
 Contemplates the following d. If the accused will be punished twice for the same offense

a. There was a valid information filed in court. (valid information)

 The information is the accusation of the prosecution against the accused

b. The accused was validly arraigned under that information. (valid arraignment)

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Q: An acquittal is not subject to further appeal by the state. Is there such a thing as appeal by the state?  Amparo: connected with right to life, liberty and security. But this was
detained to defer the gravest kind of human rights violation such as
Yes. Primarily on the grounds of: extrajudicial proceedings and enforced disappearances. A mere property
dispute would not warrant the writ of amparo as a remedy
a. Grave abuse of discretion
b. Denial of due process on the part of the prosecution
c. If the question posed on appeal by the prosecution is purely legal  Habeas data: connected to right to privacy particularly information privacy. It
d. If the appeal is upon the instance of the accused with the support of the prohibits illegal invasion of data. This will not only apply to state actors and
prosecution. agents but also to private persons who are collecting data without the consent
of the owner
Illustrative case: an accused was granted probation. He wants to withdraw
probation. Court does not agree. The state supported the accused to challenge the
order.  Writ of kalikasan: founded on the precautionary principle in environmental
law. The right to the environment is a human right itself. Any person for that
Note: if criminal case is appealed, everything will be reopened. matter can prevent environmental abuses before it will even happen. Note also
the concept of intergenerational responsibility.
EX-POST FACTO LAW OR BILL OF ATTAINDER
SECTION 22. ArticleIII  Grant of concession, privileges, franchises, involving national economy and
patrimony
No ex post facto law or bill of attainder shall be enacted.  Preference is given to qualified filipino citizens. Not all filipino citizens can
exploit the national economy and patrimony.
 One aspect of the qualification is the financial capability to enter into
Ex post Facto law: agreements with the government for purposes of enjoying national patrimony.

 Regalian Doctrine/Jura Regalia

1. One which makes an act criminal but not criminal when done
2. One which aggravates the crime or makes it greater than when it was committed
3. One that alters the rules of evidence in order to secure an easy conviction
4. One which deprives the accused of lawful remedies available when the crime was
committed
5. One that prohibits retroactive application of criminal laws when favorable to the accused.
Bill of Attainder
 Proposed law that will deprive the accused of the benefit of a judicial trial.
 Legislative act which inflicts punishment without the benefit of a judicial trial.
OTHERS
 Constitution, definition: no need to memorize the technical definition. It is composed of
two parts.
1. Defining the structures and functions of the government; and
2. Defining the basic and fundamental rights of the people
 Habeas corpus, amparo, habeas data, writ of kalikasan: more on special proceedings. In
constitution:
 Habeas corpus: connected to the right to life, liberty, and security. It is an
order to deliver person to determine the validity of the arrest
 Any property which is outside the coverage of private ownership is presumed
to be belonging to the state.
 This presumption is a disputable presumption
 Native title in the Philippines
 IPRA
 Native Title, concept: some groups are considered owners of these properties
before the establishment of a formal state system.
 Carino case
 Required capitalization for exploration, development of natural resources
 Under 1935 and 1973Constitution, Alvarez vs Pico
A license is required to explore and utilize natural resources.
 Under 1987: we do not see the word ‘license’. The state should always be a
partner. The constitution allows joint venture, partnership, co-investments with
qualified corporations and individuals and with the state.
 State has the power of control in natural resources over LGUs, not merely
power of general supervision.
 Limited to individuals and Filipino corporations where capital is atleast 60%
owned by such citizens.
 Actual numbers or stockholdings? Stockholdings.
 Duration of agreements with the government: 25 years, renewable for another
25 years
 Public utilities, franchises and authorities
 Capital: 60% filipino citizens
 Can a foreigner acquire or own public or private lands? No

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Except for hereditary succession and for natural born filipino

Ra 8179: 5000 square meters maximum

 Practice of profession
 Limited to Filipino citizens

 Organizations,etc, monopolies
 There is no longer distinction between constituent and ministrant function.
State must be partner in all….. Under the social justice principle

 Commission on Human Rights

 Also constitutional commission but lesser powers. No adjudicatory powers.
Only investigatory and reportorial. Investigate and report on human rights
conditions of the. Country
 Abolition will require amendment or revision of the constitution

 Can we violate it without violating international agreement ? No. Philippines is

a signatory of the United Nations. United Nations implemented Paris
principles. It required the creation of so called NHRIs: National Human Rights
Institutions for all members of the United Nations so that human rights will be
recognized.

Academic Freedom
 Freedom to choose what to teach, when to teach, who to teach and how to teach

As designed, will it apply to all educational institutions?

No. It will only apply to higher educational institutions.

Connect academic freedom with Filipinization of Education.

 In the administrative aspect, the line of administration of a higher educational institution

should be run by Filipinos.
 Administrators, principal officers of college or university like the president or deans and
other corporate officers shall be Filipino citizens.
 Another aspect: can a school be established to cater alone to foreign students? No.
Only exception: if the school is established by foreign diplomats of consular officials.

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
Right of accused to be notified
 To be given copies of all orders of the court
 To be notified of any stages of the proceeding

Right of accused to secure compulsory processes of court

 Whether duces tecum or ad testificandum

Right to counsel
 If party appears without counsel, judge should ask first if he has the intention to secure
the services of his own counsel
 If he says that he has no means or capacity, it is incumbent in the part of the judge to
provide him with a counsel
 PAO
 Counsel de-officio

Q: can you file a bill of particulars in criminal case?

A: There is constitutional right for to be notified, particularly if the information is vague.

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Modes of Acquiring Territory under PIL

PUBLIC INTERNATIONAL LAW Source: 2nd year lecture notes
 Branch of public law that regulates relationship between states and other entities
which have been granted legal or international personality 1. DISCOVERY AND OCCUPATION
Criteria: territory must be tera nullus (must not be belonging to any state)
 Importance of definition: you will see the limits of public international law and its
subjects Q: Should it be uninhabited?
 PIL is NOT a subdivision of political law. Not governed by municipal law. PIL operates A: No. Even if inhabited, it can still be the subject of discovery if inhabitants do not possess
under a different domain sufficient degree of civilization as tested by contemporary standards
 There can be no law that can be compelled against a sovereign state.
 Special because binding legal effect of PIL will depend on the concept of - There are certain territories that cannot be subject to discovery and occupation:
VOLUNTARY CONSENT a. Open Seas/High Seas/International Waters
 States voluntarily assumed obligations and rights under the legal system, not by - Belongs to no one: res communes
legislation but through different sources. b. Outer space
 PIL is not legislated. - Res communes: belong to the whole mankind
- Outside the commerce of man
- Bound to benefit all mankind
Subjects of PIL
1. States Requisite of Effective Discovery and Occupation:
2. And other entities granted with legal or international personality Possession and Administration of Territory Discovered and Occupied
- In a discovered and occupied territory, a government must be established
- Semblance of order
- Kalayaan Group of Island: Spratlys
Statehood, requisites  Discovery by Filipinos, but no sufficient showing of establishment of local government
1. People to the islands
Characteristics:  Only transient possession

1. Community of persons living in the state - If failed to possess and administer, the state will have an inchoate title of discovery
2. Sufficient in number to defend themselves as a state
3. Involves both sexes to perpetuate human race Significance of inchoate title
In the meantime, it would serve as a bar/prohibition to other states to lay claim over the
2. Territory territories until such time that the discovering and occupying state will established
- Fixed and permanent portion on the earth’s surface inhabited by the people of the state administration and possession in a reasonable period of time
and over which it has supreme authority
Q: If there is real failure to establish possession and administration, what is the consequence?
 Characteristics: A. There is Dereliction: physical withdrawal and relinquishment of territory to another
a. Permanent state.
- in the modern times, there are no more nomadic states
b. Definite Effects:
- Territorial limit would also define the jurisdiction of the states  abandonment of legal claims over the discovered and occupied territory
Except:  the territory will revert back to being tera nullus
 Extra-territoriality (RPC, Article 2)
 Nationality Rule (Family Code, article 15) 2. CESSION
c. Sufficient enough to sustain population - Derivative transfer of on territory to another, which is done formally through a treaty
d. Should not be too extensive - Example: Treaty of Paris
-Very vast territory is difficult to administer and defend
3. CONQUEST AND SUBJUGATION
- One state is conquered in the course of war and thereafter annexed under the
sovereignty of the conquering state

4. PRESCRIPTION

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- A territory will become part of another territory by reason of adverse of 3. International environmental law
uninterrupted possession thereof for a long period of time o Environment is a human right in itself. An individual may invoke his right to the
- PIL does nor prescribe the period; states can refer to municipal law environment without waiting for the action of the government particularly under
the precautionary principle
HOWEVER, there is no case law proving this theory o State or individual can act ahead of time without waiting for actual deterioration
of the environment.
5. ACCRETION
- A natural process such as gradual deposits of soil through actions of water or human Oposa vs Factoran: Intergenerational Responsibility
labor o Responsibility of the present generation to protect the environment for the
benefit of the future generation.

3. Sovereignty 4. Environment as a person under PIL exercising certain rights that can be protected.
 Internal: absolute, supreme and uncontrollable
 External: capacity of states to enter into relationship with other states
NO STARE DECISIS IN PIL
4. Government
- agency to which the will of the state is formulated, expressed and realized.
- In PIL, the state can only assert its rights and obligations through the government Sources of Public International Law
 voluntarily assumed by the states
International Organizations
 To be a subject of PIL, the composition of that International Organization should be states
Article 38, par 1 and 2 of Statutes creating ICJ
also
 E.g. united nations  Main instrument that will guide us about the sources of PIL
 Paragraph 1: primary sources and secondary sources

Ordinary Individual
 Can be considered as subject of PIL under modern view 1. Primary Sources
 Manifestations that they can be subject of PIL, particularly in the field of IHRL: 1. Treaties and International Agreements
2. International customary law
Before, if a state will pursue an international claim for damages, it requires permission of 3. Principles of Law
the individual. He can only be represented before an international forum by the state.
Before ICJ, only states can be parties.
2.Secondary Sources
1. Writings of well-known publicists and writers in PIL
But now:
2. Decisions of courts
 Both municipal and international decisions in PIL as long as decision is fair and accurate
1. In the field of human rights under ICCPR, human rights victims or violators are now
representation of PIL
directly treated as subjects of PIL
o ICCPR: first optional protocol creating individual complaint mechanism
Direct communications by individual may be entertained.
These are complaints. Primary Sources
o Requisite: PRIOR EXHAUSTION OF LOCAL REMEDIES 1. Treaties or International Agreements
o If all legal processes within state is followed and yet there is no relief given by  Is it required that a treaty be in writing? Does it follow a particular form?
the state, then go now to international remedies No. There is no such requirement. In the past, mere handshakes and phone calls will make
a treaty binding, without the need of formalizing things.
2. International humanitarian law and International criminal law States can assume the obligations of an oral treaty
o These two modern subdivisions of PIL  Exception:
o For violations, direct recourse can be had against individuals. Individuals may Vienna Convention on the Law on Treaties
also be direct complainants for these violations. - Requires that a treaty should be in writing.
- This is the only treaty requiring a particular form

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- When is the state bound by the rules on Vienna convention? If the state signed the
treaty.
Hence,
General Rule: No need to be in writing as long the states will assume the obligations and rights in
the treaty
Exception: Vienna Convention
- Aside from being in writing, a treaty can only be entered into by states and
international organizations. This highlights the traditional view.
Ratification of a Treaty
 A rule of municipal law and not public international law
 The process of ratification will depend on state-to-state basis. There is no uniform rule of
ratification
 In the Philippines, ratification is an executive function
 President as chief diplomat shall be the one to ratify the treaty by signing and following
local legal processes
 Constitution: any treaty signed by president also requires concurrence by the senate by
2/3 votes.
 Can you compel president to submit the treaty for concurrence of senate?
No. You cannot compel the president by way of mandamus.
Obligatio Erga Omnes
o Obligation of a state to another state
o E.g. international environmental law. Protection of environment is now considered as
something that can transcend in state borders. You can set aside concepts of
sovereignty in international environmental law. Protection of environment is now an
international obligation. Another state can give opinion as how the environment
must be protected.
o Principle of good neighborliness- prohibits States from using or permitting the
use of its territory in a matter that is injurious to the territory
o Another example: international disaster relief.
 It is the responsibility of all members of the international community
to give aid to States affected by calamities
 In such case, we can also set aside the principle of sovereignty
o International space exploration: should be the endeavor of all humankind.
 These two parts of ICL are considered as exceptions to the voluntary consent
General Rule: state must agree (Voluntary Consent)
Exceptions: jus cogens and obligatio erga omnes
 no requirement of state consent.
 There is presumption that states should follow it

2. International Customary Law (ICL) Arigo vs. Swiff

 Long and established way of doing things under the conviction that it is right and good. US military vessel: haywire navigational system.
 Two important elements of ICL Went to West Philippine Sea. In the process, corals were damaged
a. Long and established ways of doing things—STATE PRACTICE Philippines asked for damages
o Requires consistency of practice over a long period of time US Government’s argument: it is not a signatory to UNCLOS
o An international custom was followed by states over a period of time  Under UNCLOS, there is liability if you cause damage or environmental destruction,
o Period of time: no exact formula
accidental or not
o The better way is to consider the consistency of practice.
Is US Government exempted from liability?
b. Conviction that it is right and good—OPINIO JURIS SIVE NECESSITATIS
 No. The UNCLOS is part of International Customary Law. If we consider the
o Most important element of international law
UNCLOS as international convention, it is a mere codification of known
o There is a sense of legal obligation to follow an international custom
international customary laws as to the usage of the sea.
precisely because it is right and good
 ICL can in fact be codified into treaties.
o Without that legal conviction, it cannot be considered as international
 UNCLOS
customary law
 International Humanitarian Law
o Mere usage is not enough to consider a norm as part of ICL
o Saluting heads of states: mere usage without any sense of legal obligation.
It is mater of diplomatic protocol but not pa of ICL
 Parts of ICL 3. General Principles of Law
1. Jus cogens  Legal rules adopted by majority of States in their legal system because of their intrinsic
2. Obligatio erga omnes merit
 Legal principles that we can see being adopted by states as part of their legal system
 Res judicata
Jus Cogens  Due process
o Peremptory norms  Pacta sunt servanda
o Prohibit commission of acts considered as inherently wrong and evil  Non-violability of contracts
o Can a state legalize genocide, racial discrimination, slavery, human trafficking? No.

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 Aside from nature of these primary sources, they are also manifestations of voluntary o Principles of equity if there is no direct or subsidiary laws that will apply to a
consent situation
 For treaties and international agreements: voluntary consent must be expressed. o Literally means what is right and just
For International Customary Law: Voluntary consent are presumed
For General Principles of Law: Voluntary consent is implied
PIL and Municipal Law

Hard Law vs. Soft Law 1. Doctrine of Incorporation

 Even in absence of enabling law, principles of PIL may be applied in the Philippines
 Treaties, international agreements, ICL, they are hard law with binding legal effect
Hard law is also called lex lata
2. Doctrine of Transformation
 Soft law: with no binding legal effect; lex feranda
 Need of enabling law
They are merely considered as resolutions and declarations of an international
organization, for instance. To guide internal management of the international organization
or day to day activity.
Article II, SEC 2

Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles
International Bill of Rights of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom,
 Main international instruments protecting human rights. cooperation, and amity with all nations.
 Three instruments considered part of international bill of rights
1. Universal Declaration of Human Rights (UDHR)
2. International Covenant of Civil and Political Rights (ICCPR) - We follow doctrine of incorporation
3. International Convention of Economic Social and Cultural Rights (ICESCR) - But recent developments in law-making show that we also adopt doctrine of
transformation
- In various human rights instruments that we sign, the mere existence of these treaties
Universal Declaration of Human Rights (UDHR) are sufficient, but we went further. We legislated laws in order to adopt these rules
 Not a treaty by way of local legislation.
 Mere declaration signed after World War II (1948) - E.g. Law on torture, genocide, baselines
- There is no prohibition in the constitution that we cannot adopt the doctrine of
Do we consider UDHR as a mere soft law? transformation. This is now the modern trend.
 No. UDHR is now considered as part of international customary law, specifically of jus
cogens.
 Even in the absence of a law or treaty, they are binding and considered as hard law. No
Resolutions of Conflict between PIL and Municipal Law
state in the world is allowed violate such law. 1. Harmonize
Doctrine of purposeful hesitation in declaring a treaty or rule as unconstitutional. There
is presumption that the treat has been studied before being ratified. It is great disrespect
Is there a way to violate ICL? ‘ by the SC to declare such treaty as unconstitutionality.
 Yes.
2. Consider the forum if harmonization is not possible
 If issue is decided by a local court, municipal law will be upheld against the rule of PIL
Persistent Objector Doctrine  Under constitution, SC is empowered to declare a treaty as unconstitutional. This is a
 Also requires a certain period of time, and the state shall prove that over the years, the manifestation that in so far a local forum, municipal law will be given much weight
state resisted the application of that particular international customary law.  In international forum, such as International Court Justice, International Criminal Court, Ad
 This is exception Hoc Courts international law shall always be upheld. You cannot use municipal law as a
 Exception to the exception: you cannot be a persistent objector in applicability defense in this forum.
of international human rights law
Diplomatic and Consular Law
 Diplomacy: Process of legation
Are sources limited to Article 38 creating ICJ? o Art and practice of maintaining friendly relationship among states
 No. Paragraph 2 of article 38 consider also. o Also called as diplomatic practice
 Legation may be active or passive.
Ex aequo et bono  Active Legation: act of the state of sending diplomatic representatives.
o Equity jurisdiction in public international law  Passive: accepting diplomatic representatives
 Both diplomatic and consular relationships.

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 Legation is also based on voluntary consent
 Diplomatic mission is established for sovereign purposes: to represent the state within the
territory of another state. To protect the citizens sojourning in the territory of another
state.
 Consular relationship is maintained for commercial, proprietary business purposes.
 Because of principle of sovereignty, a state sending diplomatic missions can expect the
grant of so-called diplomatic immunities and privileges
 Basis of these immunities: sovereignty
 Sovereignty
Under Domestic Law: power of a state to impose its own laws within its territory
Under PIL: external sovereignty/independence: power of state to maintain legal
relationship with another state without interference or control
E.g. Diplomatic official buys property for his personal use as his vacation house. It is subject
to real estate taxes since it is not related to his official functions
NATIONALITY AND STATELESSNESS
- Grace Poe case: review!
- Nationality is considered an independent human right
- Foundlings are protected and given nationality of the state or country where he is
found to prevent the status of statelessness. If you are stateless, you lack national
protection.
- Right to abandon nationality? It is also a right. That is why we undergo process of
naturalization in another state.

Is sovereignty subject to limitations?

 Under municipal law: not subject to limitation. Causes for statelessness
 Absolute, 1. Mixed application of jus sanguinis and jus soli
 Supreme, 2. Abolition of a state
 Imprescriptible, 3. Revocation of naturalization
 Uncontrollable.
- A stateless person may possess basic human rights under PIL, particularly the right to
 Under PIL: May be subject of limitation life, liberty, to be issued identity papers, reasonable means of livelihood
- What is the most important right of a stateless persons aside from life or liberty?
Right to apply for naturalization
Auto-limitation of sovereignty/reciprocity
 Every time the state will enter into a treaty, a part of its sovereignty is always surrendered
so that it could get beneficial treatments or provisions.
 Tanada case
Refugee
 Can a stateless person be considered as refugee? Yes.
 Refugees: one who is displaced from his own state by reason of war and natural calamities
 Can you be a refugee within your own state? Yes. They are called “Internally displaced persons”.
Diplomatic Immunities or Privileges This is brought about by calamity, rebellion, etc.
 If you are stateless and refugee, you are also entitled to a human right under PIL:
1. Non-violability of persons and premises You may invoke the non-refoulment principle
 Diplomatic official who committed heinous crime: he cannot be arrested. Remedy is  You cannot be compelled to be deported back to your home state or habitual
to kick out of the country and declare him as persona non grata. state of residence if there is reasonable belief that your life is in imminent
 Personal inviolability is absolute danger.
 Consular official: cannot be arrested, except for serious and heinous crimes
 Others: members of international organization.
 To answer whether they can be arrested: criteria is whether the act was committed Doctrine of State Responsibility
in relation to their official functions.  Traditional View:
confined to a situation wherein an alien will suffer injuries or damages while sojourning
Yap vs. People within the territory of another state
Inviolability of premises: a diplomatic or consular premise is not subject to search  Modern View:
and seizure even if searching officers are armed with search warrant. These the test is the international human rights law state can be held responsible for any human
premises are considered as extensions of the territory of another state. rights violation committed against a foreigner or citizen if this important element is
present: attribution
2. Cannot be compelled to testify not subject of subpoena process  Any injury that may be attributed to the state or state actors
3. Freedom of communication with mother state
4. Freedom from taxation
 Income taxation only (direct taxes)
 Not other taxes
 The act must be related to official function.

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jurisdiction- another State/ even an international court can still assume
Jurisdiction of States jurisdiction over such person.
 Jurisdiction under PIL: power and control of a state over things and persons within or  No violation of right against double jeopardy -> “Doctrine of
outside its territory. Complementarity”
 E.g. Terrorism, piracy (crimes against humanity), hijacking, sabotage,
violation of peremptory norms, genocide, violations of human rights
Bases of Jurisdiction
1. Territoriality Principle
*other bases based on our 2nd year notes
 Vests jurisdiction to th State where the offense was committed, as a
general rule
 If the act happened within the territory of the state, it has jurisdiction 5. Jurisdiction based on an agreement
Jurisdiction can be the subject of a treaty
e.g. RP- US Visiting Forces Agreement -> US jurisdiction over its military personnel;
2KINDS EDCA

a. Subjective Territorial Principle 6. Jurisdiction based on voluntary consent

If an activity takes place within the territory of the forum state, the forum State Military personnel visiting a host State and the military personnel will voluntarily
has jurisdiction submit to the jurisdiction of the host State because ordinarily military personnel are
not subject to the jurisdiction of the host state.
b. Objective Territorial Principle
Where the action takes place outside the territory of the Forum State but the Exceptions in the Jurisdiction of a State
primary effect of that activity was felt in the territory of another State, then
that State has jurisdiction. 1. Par in parem non habet imperium
-an equal has no power over a fellow equal
2. Nationality Principle
 If the act was committed by a national of a state, such state can assume 2. Foreign State Properties
jurisdiction regardless of the fact that the national is outside the -embassies, consulates, public vessels owned by another State are regarded as
jurisdiction of the state extensions of the territory of a State.
 Personal laws, succession,
 Income received by citizen within or outside, subject to jurisdiction of the 3. Act of State Doctrine
Philippines -a State will not seat in judgment on the acts of the government of another done
 Based on Article 15, NCC within its territory.

4. Foreign Merchant Vessels/ Commercial Vessels exercising the right of innocent

KINDS passage

a. Active Nationality Principle

Jurisdiction will be based on the nationality or citizenship of the actor Nationality Principle
 Passive and objective nationality
b. Passive Nationality Principle
Jurisdiction will be based on the nationality of the victim/ offended party.
1. Passive
 If the victim of the act is a national of a state
3. Protective Principle
 If the would be victim of an act is the state itself, that state can act to 2. Objective
prevent possible injury or damages  Wrongdoer is the national of a state
 This is invoked in acts of terrorism - No standard formula as to the bases, it could be a combination of these bases.
 Justifies the concept of pre-emptive strike

4. Universality Principle
 Acts generally considered by states as crimes in their own legal system
Extradition
 There are certain acts wherein all States can assume jurisdiction, it does - The surrender of a fugitive by one State to another State where that person is
not matter whether a person has already been convicted in a particular wanted for prosecution or if already convicted, that person is wanted for
punishment.

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 Distinguish Extradition from deportation o Includes all penal ordinances enacted by the barangay, city,
municipalities, provincial, felonies under the RPC, violation of special
Deportation Extradition penal laws.
Basis Municipal Law.It is Extradition Treaty. Without
considered as a unilateral this treaty, you cannot
act of the State to expel the compel a state to surrender
International Human Rights Law
so- called undesirable a fugitive to the jurisdiction
aliens of another state, unless,
there is voluntary consent. Generation of human rights
It is always bilateral. 1. First: negative rights. Designed to prevent governmental abuses, violations of basic
Police Action State Responsibility by human rights
reason of a treaty 2. Second generation: positive rights to promote economic social and cultural well beings
Treated as an Sui generis 3. Third: collective rights. Can be invoked by groups of individuals such as environmental
administrative proceeding and indigenous right
Limited to aliens/ Includes citizens of a State 4. Fourth: for future generation. Same sex marriage. IVF. Internet use
foreigners within a State as well as foreigners/ aliens
who may be a subject of an
extradition request.
International Humanitarian Law
 Law on armed conflict/ law of war
Basic Principles of Extradition  Geneva Conventions
Originally part of ICL. They were codified.
 Right to bail can be invoked in an extradition case  Universal Application of Geneva Conventions: part of ICL even if there is no direct
 In a deportation case, if we follow ruling of the SC, pursuant to UDHR, whenever there is participation of the state in the signing of the treaty. All states in the world are deemed
deprivation of liberty, the right to bail is available. to be signatories of the Geneva Convention. All states are bound by international
 Can an extradition treaty be applied retroactively? Yes. It is not a criminal law or a penal humanitarian law. It is part of jus cogens
law.  Main purpose: to protect those not directly participating in war or armed conflicts.
 If it is not a criminal statute, it is sui generis. A class of its own. Civilians, medical and religious personnel, hors de combat (someone injured and
incapacitated by reason of war)
How do we determine extraditable offenses?
 Rule on specialty: if extradition request is for the crime of murder and you
were surrendered in the jurisdiction of another state, you cannot be tried for
Armed conflict
another crime, under this rule, the extraditee shall be indicted and tried for the o international or domestic
crime indicated in the extradition request. o exists whenever there is resort to armed forces between States or protracted
armed violence between government authorities and organized armed groups
Can the requested state determine probable cause? Yes, this is the prerogative allowed to the or between such groups within a State
requested state.
a. International Armed Conflict: if the armed contention is between armed forces of two
The mere existence of extradition treaty is not automatic. Under local laws of requested
or more states
stated, it can determine propriety of the request. Hence it can determine probable cause.
Acceptable warfare under constitution: defensive warfare. Congress can only
declare a state of war, not war in itself. If it declares state of war, it
 Double criminality Rule: all offenses within the local statute of the offended
presupposes that we were attacked first.
state are deemed extraditable provided that the offense has equivalent in the
b. Non-international/Domestic: armed contention is between armed forces of a state an
requesting state.
organized arm group or between two or more organized arm groups.
Why? In order to avoid cumbersome task of listing all extraditable offenses.
o Makes all offenses defined and punished as crimes under the laws of
both State parties under an extradition treaty as extraditable without
the need of specific listing of extraditable offenses. Four guiding principles in IHL
o Requires that the acts underlying the criminal charge sustains a 1. Human dignity
charge similar in nature under the laws of the requested State  To protect the dignity of those who are affected in the armed conflicts
o Need not exactly be the same in nomenclature  Sexual violence is not allowed

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 Using suicide bombers is not an acceptable warfare as it reduces human 3. Territoriality Rule
dignity. It can never be legalized under IHL because it increases human 4. Subject Matter Rule
sufferings and violates our concept of self- worth or self- respect.
 Human and compassion shall exist om times of war
Temporal Rule
2. Care
 Requires care for the wounded and sick combatants; adequate care upon  It is not enough that state sign. Must be ratified
capture  Aug 11 2011: ratified rome statute.
 Physical and mental acts of torture on POWs are not allowed  Effectivity: Nov 1 2011
 Captured enemies cannot be the subject of human experimentation  Acts prior to (ratification) cannot be tried under the temporal rule.
 Hors de combat, POWs, cannot be the subject of summary execution (Sir said something about July 2002?)
 November 1 2011, now may be prosecuted
3. Acceptable warfare
 nuclear weapons, chemical weapons, not allowed. Not all kinds of weapons
may be used. Weapons that may cause damages more than necessary under Nationality rule
circumstances are not allowed
 Attacks/weapons which indiscriminately strike civilians or those which case  Act committed by person who is national of a state that signed the Rome Statute
excessive injury or sufferings are prohibited.

4. Distinction
 combatants should distinguish civilians. If there is doubt whether he is
Territorial Rule
combatant or non-combatants, doubt should be resolved in favor of the latter.  Act committed within the territory of the state
This is why uniforms are important.
 This also requires care for so-called child soldier: 15 years old and below. Their
employment in terms of armed conflict or war is a violation. These two rules (Nationality and Territorial Rules) need not concur

RA 9851: International Humanitarian Law of the Philippines Subject Matter

- Local remedies  If it involves the four international crimes
- Anti torture, anti enforced disappearance, provision on command responsibility
- President is included, but you cannot sue him during his incumbency (Immunity
from suits) Doctrine of Complementarity
 International Criminal Court cannot automatically assume jurisdiction if local courts are
still functioning.
International Criminal Law
IHL with International Criminal Law
Law of the sea
Rome statute  Part of UNCLOS
 Regulates internal use of the sea whenever it will be used by states
International Crimes  It refers to a body of international customs and agreements defining the rights of States
1. Genocide over the sea, productivity of the States over the sea, peaceful resolution of States
2. Crimes of Aggression brought about by the use of the Sea
3. War Crimes
4. Other crimes against humanity
United Nations Convention on the Law of the Seas (UNCLOS)

ICC can assume jurisdiction over these crimes. - Treaty embodying the laws of the Seas

How will ICC assume jurisdiction?

1. Temporal Rule
2. Nationality Rule

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UNCLOS provides the concept of: Territorial Contiguous Exclusive Continental Shelf
Waters Zone Economic
1. Territorial water Zone
2. Internal Water Breadth/ 12NM from 24 NM from 200 NM from 200 NM from EEZ
3. Archipelagic Doctrine Dimension baseline baseline baseline
4. Liberant Maritime Zone Definition Waters adjacent Waters All economic For purposes of
5. Common Use of the sea among States to the coast of beyond the resources can exploration of the sea,
6. Non- ownership of the high seas/ open seas/ international waters the State territoria sea be exploited subsoil, seabed
7. Criminal provision: piracy over the high seas in excess of 12 whether part of
- The Philippines is a signatory to the UNCLOS Not party of the NM the sea, subsoil, Marine Life cannot
- RA 9552- Baseline Law of the Philippines martitime zones or seabed exploited. Limited only
 Strengthens the archipelagic doctrine adopted in the Philippines but part of the to exploration of energy
o Art 1, 2nd Sentence: The waters around, between, and connecting fluvial domain It includes and other minteral
the islands of the archipelago regardless of their breadth and marine life resources only if here is
dimension form part of the Philippine archipelago the availability of
technology.
Extent of Absolute The Coastal/ Limited Limited Jurisdiction
Baseline Method Jurisdictio jurisdiction Archipelagic jurisdiction
 Purpose: to divide the internal waters from territorial waters and other n State exercises
maritime zones All of our laws limited No law can be
 Applies to “archipelago” and “coastal states” can be imposed jurisdiction imposed. Right
with the 12 NM over its is limited to
Two Kinds Exc: Right of contiguous EXCLUSIVE
innocent zone EXPLORATION-
1. Normal: low watermarks as starting point when is high tide or low tide passage:navigati no other State
2. Straight: when coast lines is ragged/ contoured like in the Philippines. Connect on should be LAWS THAT can explore the
outermost parts of archipelago to determine baselines innocent, CAN BE area.
 Pertains to the drawing of straight lines connecting appropriate outermost expeditious to ENFORCED
points of the islands of the archipelago without departing from the general be validly i. Customs
contour/ appearance of the archipelago exercised Law
ii. Fiscal Laws
All of the bodies of water that are inside after the baseline was closed iii. Immigratio
n Laws
 Within the territory – inland waters, internal waters, national waters iv. Sanitary
Laws
v. Environme
Maritime zones ntal
1. Territorial sea
2. Contiguous zone
We exercise jurisdiction over these zones because we have a treaty allowing it. Local laws even
3. Exclusive economic zone
constitution are not sources of acquiring territory.
4. Continental shelf
Read on the following:
Two things
a. Mandatory Arbitration
b. Benham Rise
1. Dimension or depth
c. 9-dash line
2. Extent of jurisdiction or sovereignty exercised by the state
d. There should be voluntary consent in the enforcement of arbitral award

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