HUMAN RIGHTS LAW : as individuals, while we are entitled to our

human rights - but, we should also respect

MODULE 1: INTRODUCTION TO HUMAN RIGHTS LAW
and stand up for the human rights of others.

International Human Rights Law

Characteristics of Human Rights
-basic rights and fundamental freedoms are inherent to all
1. Inalienable
human beings, inalienable and equally applicable to
everyone, and that every one of us is born free and equal in -you cannot lose them, because they are linked to the very
dignity and rights. fact of human existence, they are inherent to all human
beings.

-Ex: freedom from torture

Core Principles of Human Rights according to the UDHR:
2. Indivisible, interdependent, and interrelated
-Universality
-different human rights are intrinsically connected and
: we are all equally entitled to our human rights
cannot be viewed in isolation from each other. The
-Interdependence and indivisibility enjoyment of one right depends on the enjoyment of many
other rights and no one right is more important than the rest.
: one set of rights cannot be enjoyed fully without
the other. -Ex: freedom of belief or opinion, freedom of religion and
worship.
-Equality and non-discrimination
3. Universal
: All human beings are born free and equal in
dignity and rights. -they apply equally to all people everywhere in the world,
and with no time limit. Every individual is entitled to enjoy
-Entails both rights and obligations his or her human rights without distinction of "race" or
: States have obligations and duties under ethnic background, colour, sex, sexual orientation,
international law to respect, protect and fulfill disability, language, religion, political or other opinion,
human rights. national or social origin, birth or other status.

- Ex: right to life is the same whether one is in Asia or Europe

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4. Fundamental -They are strongly individualistic and negatively constructed
to protect the individual from the state.
-Without them the life and dignity of man will be meaningless.
-Ex: right to individual liberty and security of a person or 2. Socio-economic Human Rights
freedom of thought and religion
-guarantee equal conditions and treatment.

-They are not rights directly possessed by individuals but

5. Inherent constitute positive duties upon the government to respect and
fulfill them.
-Not granted by any person or authority, do not need any event
for their existence. -Ex: right to development, right to work under decent living
conditions, right of workers to self-organization.
-Ex: right to life and dignity as a human being
3. Collective-developmental Human Rights
6. Imprescriptible
-rights of peoples and groups held against their respective
-Cannot be lost even by a long passage of time.
states aligns with the final tenet of “fraternity.”
-Ex: freedom of thought, conscience and religion
-They constitute a broad class of rights that have gained
3 Obligations of the Sates acknowledgment in international agreements and treaties but
are more contested than the preceding types
1. The obligation to respect means that States must refrain from
interfering with or curtailing the enjoyment of human rights. -Ex: right of people to a healthy environment

2. The obligation to protect requires States to protect individuals and Classification of Human Rights
groups against human rights abuses
1. According to Source
3. The obligation to fulfill means that States must take positive action
-natural rights → God-given rights, unwritten, prevail as
to facilitate the enjoyment of basic human rights.
norms of society

-constitutional rights → conferred and protected by the

3 Stages of Human Rights Constitution and cannot be modified or
taken away by the law-making body
1. Civil – political Human Rights

-deal with liberty and participation in political life.

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 -statutory rights → provided by law promulgated by the law- of man as a consequence of human rights, and therefore the rights are
making body and may be abolished by the universal, inalienable and cannot be denied by mortal beings (men).
same
Natural Law - the conduct of men must always conform to the law of
2. According to Recipient nature, and this theory is detached from religion. The natural
characteristics of human beings are the social impulse to live
- individual rights
peacefully and in harmony with others, and whatever conformed to the
-collective rights nature of men was right and just. Whatever is disturbing to social
harmony is wrong and unjust.

Positivist - states that all rights and authority come from the state and
3. According to Aspect of Life what officials have promulgated, that rights are enjoyed if recognized
-civil and protected by legislation promulgated by the state.

-political Marxist - emphasizes the interest of society over an individual's

interest – communism
-economic
Functional or sociological approach - human rights exist as a means
-social of social control, that human rights exist to serve the social interests
-cultural of society. This approach was developed in the early 20th century
when there were demands for a variety of wants, as help for the
4. According to struggle for Recognition unemployed, handicapped, underprivileged, minorities and other
disadvantaged groups.
-first, second, and third generation of rights
Utilitarian Theory - principle that requires governments to maximize
5. According to Derogability
the total net sum of citizens. It emphasizes that an individual cannot
-absolute or non-derogable, be more important than the entire group. An act is good only when it
takes into consideration the interests of the society and tends to
-derogable or can-be-limited rights
augment the happiness of the entire community

Theory based on Justice - each person has equal rights to the whole
Theories of Human Rights system of liberties. The general conception of justice is one of fairness
and those social primary goods such as opportunity, income and
Religious or theological approach - doctrine of a Supreme Being, the
wealth and self-respect are to be distributed equally
creator, the Father of all humanity. Central is the concept of the dignity

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Theory based on Equality and Respect - government must treat all Derogability of Human Rights (Article 4 ICCPR, UNHR)
their citizens equally, and must intervene in order to advance the
-In exceptional circumstances, including armed conflict, rioting,
general welfare
natural disasters or other public emergencies that threaten the life of
Theory based on the Dignity of man - this theory proceeds on the a nation, governments may take measures derogating from their
premise that human rights means sharing values of all identified human rights obligations
policies upon which human rights depend on. The ultimate goal of
-Requisites to derogate human rights obligations:
this theory is a world community where there is democratic sharing
and distribution of values. All available resources are utilized to the -A state of emergency, which threatens the life of the nation,
maximum and the protection of human dignity is recognized. This is must be officially declared.
better referred to as policy science approach.
-The specific measures derogating from an international treaty
Human Rights and Human Dignity must be officially notified to the competent international
organizations and other States Parties.
Dignity
- Derogation is permissible only to the extent strictly required
-in other words, indicates worth that demands respect.
by the situation.
Human dignity is the foundational concept of the global human rights
-The derogation must be lifted as soon as the situation permits.
regime, “the ‘ultimate value’ that gives coherence to human rights”.

The claim of human dignity is that simply being human makes one
worthy or deserving of respect. Human rights can thus be understood
to specify certain forms of social respect, goods, services,
opportunities, and protections owed to each person as a matter of
rights – implied by this dignity.

Human rights are one particular mechanism – a particular set of

practices – for realizing a certain class of conceptions of human
dignity.

Human rights insist that the inherent worth of human beings must not
be left in an abstract philosophical or religious domain but rather must
be expressed in everyday life through practices that respect and realize
human rights.

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MODULE 2: HUMAN RIGHTS AND THE PHILIPPINE Members of the Commission shall be provided by
CONSTITUTION law.

The following are the human rights provisions in the 1987 (3) Until this Commission is constituted, the existing
Constitution: Presidential Committee on Human Rights shall
continue to exercise its present functions and powers.
Article II
(4) The approved annual appropriations of the
Section 11. The State shall value the dignity of every human person
Commission shall be automatically and regularly
and guarantees full respect for human rights.
released.
Article III
SECTION 18. The Commission on Human Rights shall have the
Section 1. No person shall be deprived of life, liberty, or property following powers and functions:
without due process of law, nor shall any person be denied the equal
(1) Investigate, on its own or on complaint by any
protection of the laws.
party, all forms of human rights violations involving
Article XIII civil and political rights;

SECTION 1. The Congress shall give highest priority to the (2) Adopt its operational guidelines and rules of
enactment of measures that protect and enhance the right of all the procedure, and cite for contempt for violations thereof
people to human dignity, reduce social, economic, and political in accordance with the Rules of Court;
inequalities, and remove cultural inequities by equitably diffusing
(3) Provide appropriate legal measures for the
wealth and political power for the common good.
protection of human rights of all persons within the
To this end, the State shall regulate the acquisition, ownership, Philippines, as well as Filipinos residing abroad, and
use, and disposition of property and its increments. provide for preventive measures and legal aid
services to the underprivileged whose human rights
SECTION 17. (1) There is hereby created an independent office have been violated or need protection;
called the Commission on Human Rights.
(4) Exercise visitorial powers over jails, prisons, or
(2) The Commission shall be composed of a detention facilities;
Chairman and four Members who must be natural-
born citizens of the Philippines and a majority of (5) Establish a continuing program of research,
whom shall be members of the Bar. The term of office education, and information to enhance respect for the
and other qualifications and disabilities of the primacy of human rights;

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 (6) Recommend to the Congress effective measures Constitution it states that “No person shall be deprived of life, liberty
to promote human rights and to provide for or property without due process of law”, which serves as the
compensation to victims of violations of human constitutional safeguard of due process.
rights, or their families;
b. Equal Protection
(7) Monitor the Philippine Government’s compliance
-just like in ‘due process’, equal protection does not have a
with international treaty obligations on human rights;
specific definition because it is also meant to adapt and to be flexible
(8) Grant immunity from prosecution to any person in the changing conditions of society, even so, equal protection is
whose testimony or whose possession of documents defined in a way that it simply requires that all persons or things
or other evidence is necessary or convenient to similarly situated should be treated alike, both as to rights conferred
determine the truth in any investigation conducted by and responsibilities imposed. It means that similar subjects should be
it or under its authority; given the same treatment in order to avoid discrimination against
others.
(9) Request the assistance of any department, bureau,
office, or agency in the performance of its functions; c. Rule of Law

(10) Appoint its officers and employees in accordance -it is defined as the principle of governance in which all
with law; and persons, institutions and entities, public and private, including the
State itself, are accountable to laws that are publicly promulgated,
(11) Perform such other duties and functions as may
equally enforced and independently adjudicated, and which are
be provided by law.
consistent with international human rights norms and standards.
SECTION 19. The Congress may provide for other cases of violations
of human rights that should fall within the authority of the
Commission, taking into account its recommendations. 3. When asked about the definition of human rights, the most common
answer is that these are rights that makes us human. In relation to this
definition, sadly, most people don’t know about their rights. Lack of
a. Due Process knowledge about your rights could lead to some serious trouble,
especially when an innocent individual gets implicated in a crime. The
-due process does not have a specific definition, because it is case of Miranda v Arizona led to the creation of the Miranda Rights.
meant to be flexible and able to adapt depending on the situation for In the case, Ernesto Miranda was arrested by the police and taken to
its application in the ever-changing conditions of society, however, the station. After interrogation, police officers got a signed confession
according to the words of a US Supreme Court Justice, due process is out of him. Based on it, he was sentenced for kidnapping and raping,
the embodiment of the sporting idea of fair play. In addition, in our however he was not informed of his rights when he made the

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confession. The Miranda rights is a principle that suspects must be person be denied the equal protection of the laws.’ In the case of
informed of their rights before interrogation. It was created to protect Biraogo v Philippine Truth Commission, the Supreme Court ruled that
individuals or suspects from self-incrimination. It is not sufficient that the Executive Order issued was unconstitutional and violative of the
you only know your rights, you must also know when these rights can equal protection clause enshrined in the Constitution, when the EO,
be applied, for failure to exercise your right would result to the waiver aims to single out the previous administration as the main object of
of your rights. In a case, Cagang v Sandiganbayan, Cagang argues that their investigation. Also, in the case of Central Bank Employees
there is an inordinate delay of seven years and that it violated his Association, Inc. v BSP, where their proviso was also declared as
constitutional right to due process and to speedy disposition of cases. violative of the equal protection clause by the Supreme Court, with
However, the Court ruled, that even if there was an inordinate delay, regards to the exemption from the Salary Standardization Law. The
Cagang failed to invoke his right in a timely manner, which the courts equal protection clause of the Constitution, allows classification, a
considered as a waiver of his right. classification that is based on substantial distinctions, germane to the
purpose of the law, and it must not be limited to existing conditions
It is important for a person or an individual to be always informed,
only. The government’s duty is to ensure that the rights of the people
cautious, or at least aware of the changes around him, because if not,
are protected, in line with this, they should govern with utmost
it may cause him to be at a disadvantage. In the case of Tanada v
impartiality so that they would not create classifications or distinctions
Tuvera, the Supreme Court said that, ‘publication must be in full or it
not within the objective of the law. The equal protection clause does
is no publication at all, since its purpose is to inform the public of the
not demand absolute equality but it requires that all persons shall be
content of the law’. An individual has a right to be informed especially
treated alike, under like circumstances and conditions both as to
of matters that would concern him or his person, because how would
privileges conferred and liabilities enforced.
you expect a person to abide the law, when that person himself isn’t
even aware of such law. In addition, it is important to publish the
contents of the law, because that law might have provisions that could
be prejudicial to the rights of an individual.

Human rights have come a long way, which can be seen from the three
generation of rights (first, liberty rights; second, equality rights; third,
solidarity rights), a lot of people fought for the rights that the current
society is enjoying right now, and it is only proper that these rights be
protected and nurtured.

Section 1, Article III of the 1987 Constitution, one of the human rights
provisions in the Constitution, states that ‘No person shall be deprived
of life, liberty, or property without due process of law, nor shall any

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Karel Vasak’s Generations of Rights and the Contemporary 1. Noticeably growing role of international organizations and
Human Rights Discourse international legal bodies. State sovereignty was not only
challenged, but states became subject to various axiological
According to Vasak, the first generation of rights are negative rights
and terminological innovations triggering specific reactions.
and corresponds to civil and political liberties. The second generation
of rights presumes a positive action of the state and includes social, 2. Limited ability of the Council of Europe to produce
economic, and cultural rights. Lastly, the third generation of rights comprehensive mechanisms for international protection of
is referred to as “rights of solidarity”, which require collective action minorities revealed the legal and political limits to group
of individuals as well as states and other political units. rights protection, even within a group of likeminded and
enthusiastic to extended human rights protection states.
3 Dichotomies based on the major approaches to human rights
categorization: 3. Human rights discourse embraces more and more dimensions
and specific aspects. It now also includes questions related to
• Negative and
robotics or bioethics. Human rights have been also further
o -first generation profiled to secure the needs of particular groups like elderly
or people with disabilities
• Positive
4. The contemporary human rights debate attempts to reconsider
o -second and third generation the core human rights axiology through the lenses of
• Individual and postmodernist critical theory aiming to deconstruct human
supremacism and the extension of the basis of rights to
o -first and second generation sentientism.
• Collective 5. Multicentricity, (the emergence of alternative to the state
sources of legitimacy, like the European Union or the Council
o -third generation
of Europe) paved the way for changing the nature of the
• National and human rights discourse.

o -first and second generation Results of the Research

• International • From 2000 to 2017, the most discussed category of human

rights is the first generation of rights, followed by the second
o -third generation generation, then the third generation of rights.
“Gray Zones” of the Contemporary Human Rights Discourse • Dominant bigrams

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 o first generation of rights are: generation 1 rights are gradually playing a less important role
in human rights debates.
▪ Civil society, War crimes Human dignity,
Death penalty, Crimes (against) humanity, • Most important area of the present research, however, refers
Property rights, Freedom of association, to the bigrams which could not be categorized in any of the
Religious freedom aforementioned four categories of rights, refer to the rights
connected to transition, security and terrorism, migration,
o Frequent bigrams in the second generation of rights
sanctions, warfare, eugenics and science, and identity.
are:
Discussion of the Results
▪ Economic, social, cultural rights, Labor
rights, Right (to) health, Rights (to) • Human rights tend to be discussed within the international
education, Socioeconomic rights context more frequently than in the context of nation states. It
is obvious that the shift is towards the international, rather
o Most numerous bigrams in the third generation of
than domestic realm of human rights.
rights are:
• Even though the first generation is the most numerous, the
▪ Self-determination, International (and)
main focus lies not on the “classical” list of rights such as the
humanitarian, Developing countries, Peace
rights to life, fair trial, assembly, and religion, but on the new
process, Development (of) human, Economic
concepts that generally follow the logic of the basic rights
development
while functioning in a conflict environment and entail
o Category of group rights: international response.
▪ Women’s rights, Indigenous people, • For the second- and third-generation rights, on the contrary,
Children’s rights, Minority rights, LGBT the most frequent bigrams of those categories correspond to
rights, Racial discrimination the list of rights mentioned by Vašák, those are “economic
social” and “cultural rights,” “rights (to) health,” “right (to)
o Not classified In any of the previous classes of rights:
education,” and “self(-)determination,” “developing
▪ Transitional justice, Truth commissions, countries,” “peace process,” and such alike.
Human trafficking, Displaced persons, Anti(-
Conclusion
)trafficking, Migrant smuggling
• According to the results of the analysis, the topics that are too
• A closer look at the distribution of abstracts across times
ambiguous to be categorized based on Vašák’s approach,
provides some indication that in the last two decades,

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 constitute the second most numerous category, which It does not impugn upon the right of organization
indicates a substantial mismatch with Vašák’s classification. guaranteed in the Declaration of Human Rights. The
cancellation of the SSSEA's registration certificate
• First-generation rights still receive significant attention.
would not entail a dissolution of said association or its
However, their context is internationalized and their content
suspension. The existence of the SSSEA would not be
shifts towards the international context.
affected by said cancellation, although its juridical personality
• There is a burning need for a new debate on the idea and and its statutory rights and privileges — as distinguished from
importance of human rights: firstly, because the accent shifts those conferred by the Constitution — would be suspended
from the primacy of freedom to the primacy of equality; thereby.
secondly, because the post–Cold War liberal order settled b.) Ocampo
around the human rights pillar faces unprecedented attack
from illiberal regimes and the temptation for democratic → Right to Participate in Cultural Life
backsliding; thirdly, because the power of human rights
- In the case, the petitioners are against the burial of
stemmed from its human)-centered approach.
former President Marcos in the LNMB. They argue that the
What ESC right/s is/are discussed in the following cases: burial would violate the rights of the HRVVs to full and effective
reparation, which is under the ICCCPR, since they contend that the
a.) PAFLU LNMB is a national shrine for heroes. The Supreme Court
→ Right to Worker’s Self-Organization ruled that it would be undue to extend the law beyond what
it actually contemplates. With its victim-oriented
- The Supreme Court ruled that, the registration prescribed perspective, our legislators could have easily inserted a
is not a limitation to the right of assembly or association, provision specifically proscribing Marcos' interment at the
which may be exercised with or without the said registration. LNMB as a "reparation" for the HRVVs, but they did not. As
It is merely a condition for the acquisition of a legal it is, the law is silent and should remain to be so. This Court
personality by labor organizations or associations or cannot read into the law what is simply not there.
unions to possess rights and privileges granted by law to
legitimate labor organizations. According to the Supreme Court, our nation's history will not
be instantly revised by a single resolve of President Duterte,
Such requirement is a valid exercise of the police acting through the public respondents, to bury Marcos at the
power, because the activities in which labor LNMB, lessons of Martial Law are already engraved, albeit in
organizations, associations and union of workers are varying degrees, in the hearts and minds of the present
engaged affect public interest, which should be protected. generation of Filipinos. As to the unborn, it must be said that
the preservation and popularization of our history is not the

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 sole responsibility of the Chief Executive; it is a joint and d.) Kant Kwong
collective endeavor of every freedom-loving citizen of this
→Right to Travel and Freedom of Movement
country.
- The Court ruled that the right to travel and to freedom of
c.) Marcos
movement is a fundamental right guaranteed by the 1987
→Right to Travel/ Right to Freedom of Movement/Right to return Constitution, and the Universal Declaration of Human
to One’s Country Rights to which the Philippines is a signatory. It extends to all
residents regardless of nationality, and "everyone has the right
- As explained by the Supreme Court in its ruling, the
to an effective remedy by the competent national tribunals for
right involved is the right to return to one's country, a totally
acts violating the fundamental rights granted him by the
distinct right under international law, independent from
Constitution or by law.
although related to the right to travel.

The right to return to one's country is not among the

rights specifically guaranteed in the Bill of Rights, e.) International School Alliance of Educators
which treats only of the liberty of abode and the right to
→Right against Discrimination / Social Justice / Right to
travel, but it is our well-considered view that the right to return
Enjoyment of Just and Favourable Conditions of Work
may be considered, as a generally accepted principle of
international law and, under our Constitution, is part of -The Supreme Court ruled, that the Constitution and
the law of the land .The President cannot be said to have laws reflect the policy against these evils, in the Article on
acted arbitrarily and capriciously and whimsically in Social Justice and Human Rights exhorts Congress to "give
determining that the return of the Marcoses poses a highest priority to the enactment of measures that protect and
serious threat to the national interest and welfare and in enhance the right of all people to human dignity, reduce
prohibiting their return. The documented history of the efforts social, economic, and political inequalities." International
of the Marcoses and their followers to destabilize the law, which springs from general principles of law, likewise
country, as earlier narrated in this ponencia bolsters the proscribes discrimination.
conclusion that the return of the Marcoses at this time would
only exacerbate and intensify the violence directed against the It would be an affront to both the spirit and letter of
State and instigate more chaos these provisions if the State, in spite of its primordial
obligation to promote and ensure equal employment
opportunities, closes its eyes to unequal and
discriminatory terms and conditions of employment.

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f.) Manila Prince Hotel g.) Zabal

→Preservation of Cultural Heritage →Right to Travel / Right to Work and Earn a Living /
-The Supreme Court ruled that any bearing that
-As explained by the Court, nationalism is inherent, in
Proclamation No. 475 may have on the right to travel is
the very concept of the Philippines being a democratic and
merely corollary to the closure of Boracay and the ban of
republican state, with sovereignty residing in the
tourists and non-residents therefrom which were necessary
Filipino people and from whom all government authority
incidents of the island's rehabilitation. There is certainly no
emanates. In nationalism, the happiness and welfare of the
showing that Proclamation No. 475 deliberately meant to
people must be the goal. The nation-state can have no higher
impair the right to travel. Since Proclamation No. 475 does
purpose. Any interpretation of any constitutional provision
not actually impose a restriction on the right to travel, its
must adhere to such basic concept. Protection of foreign
issuance did not result to any substantial alteration of the
investments, while laudible, is merely a policy. It cannot
relationship between the State and the people.
override the demands of nationalism.
The nature of their livelihood is one wherein earnings are not
The Manila Hotel or, for that matter, 51% of the MHC, is not
guaranteed. It must be stressed, though, that "when the
just any commodity to be sold to the highest bidder solely for
conditions so demand as determined by the legislature,
the sake of privatization. We are talking about a historic relic
property rights must bow to the primacy of police
that has hosted many of the most important events in the short
power because property rights, though sheltered by due
history of the Philippines as a nation. We are talking about a
process, must yield to general welfare." Proclamation No.
hotel where heads of states would prefer to be housed as a
475 does not strip Zabal and Jacosalem (petitioners) of
strong manifestation of their desire to cloak the dignity of the
their right to work and earn a living. They are free to work and
highest state function to their official visits to the Philippines.
practice their trade elsewhere. That they were not able to do
The Manila Hotel has played and continues to play a so in Boracay, at least for the duration of its closure, is a
significant role as an authentic repository of twentieth century necessary consequence of the police power measure to close
Philippine history and culture. In this sense, it has become and rehabilitate the island.
truly a reflection of the Filipino soul — a place with a history
of grandeur; a most historical setting that has played a part
in the shaping of a country.

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MODULE 3: THREE GENERATION OF RIGHTS AND -They are strongly individualistic and negatively constructed to
THE INTERNATIONAL BILL OF HUMAN RIGHTS protect the individual from the state.

Three Generations of Human Rights -These rights draw from those articulates in the United States Bill of
Rights and the Declaration of the Rights of Man and Citizen in the
There are three overarching types of human rights norms: civil- 18th century.
political, socio-economic, and collective-developmental (Vasek,
1977). -Civil-political rights have been legitimated and given status in
international law by Articles 3 to 21 of the Universal Declaration of
The first two, which represent potential claims of individual persons Human Rights and the 1966 International Covenant on Civil and
against the state, are firmly accepted norms identified in international Political Rights.
treaties and conventions. The final type, which represents potential
claims of peoples and groups against the state, is the most debated and Socio-economic human rights
lacks both legal and political recognition. -include two subtypes:
This division of human rights into three generations was introduced in A.) norms pertaining to the provision of goods meeting social
1979 by Czech jurist Karel Vasak. The three categories align with the needs
three tenets of the French Revolution: liberty, equality, and
fraternity. -for example, nutrition, shelter, health care,
education
Civil-political human rights
B.) norms pertaining to the provision of goods meeting
-include two subtypes: economic needs
A.) norms pertaining to physical and civil security -for example, work and fair wages, an adequate
-for example, no torture, slavery, inhumane living standard, a social security net
treatment, arbitrary arrest; equality before the law -guarantee equal conditions and treatment.
B.) norms pertaining to civil-political liberties or -They are not rights directly possessed by individuals but constitute
empowerments positive duties upon the government to respect and fulfill them.
-for example, freedom of thought, conscience, and - Socio-economic rights began to be recognized by government after
religion; freedom of assembly and voluntary World War II and, like first-generation rights, are embodied in
association; political participation in one’s society Articles 22 to 27 of the Universal Declaration. They are also
- rights deal with liberty and participation in political life.

MNI NOTES |13

enumerated in the International Covenant on Economic, Social, jeopardizing personas and communities over time, including
and Cultural Rights. jeopardizing the very interests represented in the type or
generation of rights being privileged. He offers examples of self-
Collective-developmental human rights
defeating imbalances that would result from the excessive
-include two subtypes: prioritization of any one generation over another:

A.) the self-determination of peoples … to emphasize civil-political rights to the exclusion of

socioeconomic and collective-developmental rights runs the risk of
-for example, to their political status and their creating socially disadvantaged groups within a society to the degree
economic, social, and cultural development of triggering disruption, which, in turn, invites the counterresponse
B.) certain special rights of ethnic and religious minorities of repression.

-for example, to the enjoyment of their own cultures, To emphasize socioeconomic rights to the exclusion of civil-political
languages, and religions rights runs the risk of ironically creating a situation where,
without the feedback of political participation, the advancement
-rights of peoples and groups held against their respective states aligns of socioeconomic welfare comes to be hampered or inequitable.
with the final tenet of “fraternity.”
To emphasize collective-developmental rights to the exclusion of
-They constitute a broad class of rights that have gained other types runs the risk of not only fomenting a backlash against
acknowledgment in international agreements and treaties but are more civil-political repression but also of under-cutting the equitable
contested than the preceding types distribution of the socioeconomic goods needed for the continuing
-They have been expressed largely in documents advancing solidarity of the society.
aspirational “soft law,” such as the 1992 Rio Declaration on …at worst, there may by tension between such rights in specific
Environment and Development, and the 1994 Draft Declaration of societies and at periods of socio-historic transition, but this does not
Indigenous Peoples’ Rights. mean tensions cannot be solved in a way that respects all three
generations of rights.

Though traditional political theory presents liberty and fraternity as Human rights are so thoroughly interconnected that it is difficult to
inherently antagonistic (and therefore would assert the incompatibility conceive of them as operating properly except in an interdependent
of “collective-developmental” rights with the preceding generations), and mutually supportive manner
progressive scholars argue that the three generations are in fact Although the three generations framework is a valuable conceptual
deeply interdependent. For example, Twiss argues that no single tool for thinking about rights, it is worth questioning some of its
generation can be emphasized to the exclusion of others without assumptions. Does the notion of a progression of rights and the

MNI NOTES |14

metaphor of age it is based on make sense? Do second generation Ex. “No one should be tortured”, “No one should be deprived of
rights create the background conditions necessary for the exercise of freedom of expression”, “no one should be deprived of life”
first generation rights, as certain sections of the International Bill of
Mention at least 3 basic civil rights and how they are applied in
Rights suggest, or are it the other way around? Should second and third
Philippine society.
generation rights be viewed as simultaneous? Does one generation
take precedence over another, or are all equally important? Should Ans: - Right to Life, Liberty and Property - Art III Sec 1 (no person,
second and third generation rights even be considered rights, or are not even the state has the authority to take one’s ife)
they something fundamentally different?
- Right to Privacy - Art III Sec 3 (right to be free from intrusions into
The three generations framework contains within it room for many of certain thoughts and activities)
the key debates about the nature of rights. It also encourages us to take
a critical approach in challenging our own assumptions about rights as - Freedom of expression - Art 3, Sec 4-5 (right to self-determination)
we begin to think about some of the real-world problems involved in Discuss at least 3 rights of a person who is accused of a crime.
the application of human rights in the sections ahead.
Ans: - Right to be informed of the nature and cause of the accusation
against him
Civil and Political Rights as Applied in the Philippines - Right to bail
What do you understand by civil rights? - Right to meet the witnesses face to face
Ans: Civil rights are the rights which the law will enforce at the * remember Art III, Sec 14
instance of individuals without discrimination for the enjoyment of
their lives, liberty and means of happiness. What do you understand by the principle of “presumption of
innocence” of an accused person? What is the reason of such
How is civil right distinguished from political right? presumption?
Ans: Both are protected personal rights but political rights are Ans: this means that an accused cannot be presumed to have
especially catering to the right to participate directly or indirectly in committed the charges against without the proof of guilt beyond
the establishment or administration of government. Political rights are reasonable doubt. The accused cannot be imprisoned just based on
rights to enable people to participate in running the affairs of the circumstantial evidence. The strict compliance with this is the court’s
government. policy on protecting an actually innocent person from going to jail.
Why are these rights called “Negative Rights”? What do you understand by the right of persons to peaceably
Ans: In answer to restraint the tyrannical government. assemble? Are there limitations or restrictions to this right?

MNI NOTES |15

Ans: “Peaceful Assembly” means the right of citizens to meet What do you mean by social rights? Cite examples.
peacefully for consultation in respect to public issues and to petition
Social rights are those rights concerned with basic human needs.
the government for redress of grievance.
Ex: 1. Right to development
This right can be restricted on grounds of national security, public
order, the protection of public health or morals, or the protection of 2. Right to self Determination
the rights of others.
3. Right of Workers to Self-Organization

4. Right to Work under Decent Living Conditions

ECONOMIC, SOCIAL AND CULTURAL RIGHTS AS
APPLIED IN THE PHILIPPINES 5. Right to Work in Third World Countries

Briefly explain what is meant by economic, social and cultural 6. Right to Strike
rights 7. Right to Strike as Against Property Rights
They are the commitments of the state for opportunities to achieve 8. Right to Social Security
equality and distributive justice to its citizens such as the right to food,
clothing, housing and education. It included the right to work with fair 9. Protection of and Assistance to Family
and just wages, decent working conditions, and protection of the 10. Right to Education and Development of Human Personality
family to maintain the decent standard of living.
11. Right to Students and Academic Freedom
Why are these rights considered as “social welfare rights”
12. Participation in Cultural Life and Benefits of Scientific
They are generally stated as positive undertakings or obligations of the Progress
government to ensure economic well-being of the people.
13. Religious Education and Instruction
Why are these rights also called “Affirmative rights”
14. Right to High Standard of Physical and Mental Health
They are viewed as goals or aspirations that government should
provide for its citizens depending upon its resources. What do you mean by cultural rights? Cite examples and explain.

What are the main purposes of the economic rights? Cite Rights that aim at assuring the enjoyment of culture and its
examples and explain. components in conditions of equality, human dignity and non-
discrimination.
To promote high standard of living, full enjoyment and conditions of
economic and social progress and development.

MNI NOTES |16

Ex: 1. Right to provide funds for the promotion of cultural It’s the actions or remedies to enforce and implement Economic,
development Social and Cultural rights. Must be accessible to all people, should be
simple and at the minimum cost. Free from technical forms of
2. Promotion of awareness and enjoyment of the cultural heritage
pleadings, rules of procedure in said cases should be relaxed and
of national ethnic groups and minorities and of indigenous peoples.
socio-legal fact finding bodies should be appointed to determine facts
3. Preservation and presentation of mankind's cultural heritage in issue.

4. Legislation protecting the freedom of artistic creation and How should the State comply with the Covenant on Economic,
performance Social and Cultural Rights?

Mention some provisions in the Philippine Constitution on By incorporating in their constitution most of the rights enumerated in
Economic rights, Social rights, and Cultural rights. the International Covenant in Economic, Social and Cultural Rights
and implementation of it through social legislation.
1. Art. XII on the National Economy and Patrimony
What is meant by Right of Development? Cite concrete examples.
2. Art. XIII on Social Justice and Human Rights, Agrarian and Natural
Resources, Urban Land Reform and Housing, Health Women Inalienable human right by virtue of which every human person and
all people are entitled to participate in, contribute to, and enjoy
3. Art. XIV on Education, Science and Technology, Arts, Culture and economic, social, cultural and political development, in which all
Sports human rights and fundamental freedoms can be fully realized.
4. Art. XV on the family Ex: 1. Economic prosperity
What are the obligations of developed and industrialized countries 2. Social, political and cultural empowerment
towards Third World Countries on economic, social and cultural
rights? 3. Social reform

State Parties are obliged to take steps, individually and through 4. Economic reform
international assistance and cooperation, especially economic and
5. Agriculture reform
technical, to the maximum of its available resources, with a view to
achieving progressively the full realization of the rights recognized in 6. Agrarian reform and natural resources
the present covenant.
7. Infrastructure development
What is meant by “public interest and social litigation?”
8. Governance and development financing

MNI NOTES |17

SOLIDARITY / COLLECTIVE RIGHTS - Recognition and respect of human rights and freedoms not due to
discrimination
-the consequence of a deeper understanding of the different types of
obstacles that may stand in the way of realising the first- and second- - to achieve “universal respect for an observance of human rights and
generation rights. fundamental freedoms”

-The idea at the basis of the third generation of rights is that What documents compose the International Bill of Human
of solidarity; and the rights embrace collective rights of society or Rights?
peoples, such as the right to sustainable development, to peace or to a
-United Nations Charter, -
healthy environment.
Universal Declaration on Human Rights, - 30 articles
-In much of the world, conditions such as extreme poverty, war,
ecological and natural disasters have meant that there has been only -International Covenant on Economic, Social and Cultural Rights- 31
very limited progress in respect of human rights. articles
-rights to development, to peace, to a healthy environment, to share in -International Covenant on Civil and Political Rights – 53 articles
the exploitation of the common heritage of mankind, to
communication and humanitarian assistance. Name some of the fundamental human rights ad explain each
briefly.
The right to development is an inalienable human right by virtue
of which every human person and all peoples are entitled to participate -Equal Protection of rights - human beings must have equal rights, no
in, contribute to, and enjoy economic, social, cultural and political discrimination
development, in which all human rights and fundamental freedoms - Right to life, liberty and property -
can be fully realised. (UN Declaration on the Right to Development).
- Right to Privacy - no arbitrary interference with his privacy, family,
home, communications, correspondence
The International Bill of Human Rights -Freedom of speech, expression and religion - inviolable right to
What are the reasons why the reaffirmation of the fundamental express oneself unless justifiably limited by the government
human rights was one of the main objectives of the organization What are some of the hindrances or obstacles to the enforcement
of the United Nations? of the human rights’ international instruments?
- Enforce equal human rights; “to reaffirm faith in fundamental human - War crimes
rights and the dignity and worth of human person” (UN Charter
Preamble) - authoritarian regimes headed by dictators

MNI NOTES |18

- Art. 2 par. 7 of UN Charter that gives no authority to the UN to
investigate matters happening within the domestic jurisdiction of the
country/nation

MNI NOTES |19

MODULE 4: EQUITY AND SOCIAL JUSTICE • The bottom line is that this definition of "social justice" was
not crafted for those who seek the same before courts of law.
It is, in fact, a defense that may be used by the government in
Social Justice its exercise of constitutional and extra-constitutional powers
to promote the welfare of the people.
→ is neither communism, nor despotism, nor atomism, nor anarchy,
but the humanization of laws and the equalization of social and Justice is the concept of fairness. Social justice is fairness as it
economic forces by the State so that justice in its rational and manifests in society.
objectively secular conception may at least be approximated. Social • includes fairness in healthcare, employment, housing, and
justice means the promotion of the welfare of all the people, the more.
adoption by the Government of measures calculated to insure • social justice applies to all aspects of society, including race
economic stability of all the component elements of society, through and gender, and it is closely tied to human rights.
the maintenance of a proper economic and social equilibrium in the
interrelations of the members of the community, constitutionally, Four Essential Goals:
through the adoption of measures legally justifiable, or extra-
✓ human rights
constitutionally, through the exercise of powers underlying the
✓ access
existence of all governments on the time-honored principle of salus
✓ participation
populi est suprema lex. (Calalang v Williams)
✓ equity

a.) Human Rights

• Maximo Calalang lost the case. The measure was, as the
→ Human rights and social justice are two sides of the same coin.
Supreme Court held, a government action based on police
They can’t exist apart from each other.
power to promote public convenience. The ponente ended
with, "Social justice, therefore, must be founded on the → For a society to be just, it must ensure the protection of everyone’s
recognition of the necessity of interdependence among civil, political, economic, cultural, and social rights.
divers and diverse units of a society and of the protection
→ When a society is just, it protects and respects everyone’s human
that should be equally and evenly extended to all groups
rights. This connection is essential since human rights are recognized
as a combined force in our social and economic life,
globally. Various treaties help keep governments accountable.
consistent with the fundamental and paramount objective
of the state of promoting the health, comfort, and quiet of → Governments must be held accountable when they violate these
all persons, and of bringing about the greatest good to the rights or fail to protect them. Human rights might be the most powerful
greatest number."

MNI NOTES |20

principle for social justice because they’re recognized internationally → Equity takes into account the effects of discrimination and aims for
and enshrined in many treaties. an equal outcome.

→ There’s a graphic that demonstrates this well: three people are

trying to see over a fence.
b.) Access
• One of them is already tall and able to see – they represent the
→ Being able to access essentials like shelter, food, and education is
most privileged in society. The other can just barely see and
crucial for a just society.
the last person – the most vulnerable in society – can’t see at
→ If access is restricted based on factors like gender, race, or class, it all.
leads to suffering for individuals, communities, and society as a whole.
→ “Equality” gives everyone one box to stand on, even though the
→ Social justice activists work to increase and restore access, giving tallest person doesn’t need it and it still doesn’t allow the shortest
everyone equal opportunities for a good life. person to see.

→ “Equity” doesn’t give the privileged person any boxes. Instead, the
middle person gets one box and the last gets two. Now, everyone is at
c.) Participation
an equal level.
→ Social justice isn’t possible if only some voices are heard.
Where do the 4 principles apply?
Unfortunately, that’s often what happens and the voices of the
marginalized and vulnerable are silenced. • Reproductive rights

→ Even when society tries to address problems, solutions won’t work • Access to healthcare services
if those most affected can’t participate in the process.
• Access to good education
→ Participation must be encouraged and rewarded so that everyone –
• Employment discrimination
especially those who haven’t had a chance before – can speak.
• Voting discrimination
→ This is where access and equity come into play again. Within most
societies, participation is reserved for only a few. To increase access, • Disability discrimination
society must remove barriers to participation. For equity, historically-
Social justice means that everyone’s human rights are respected and
undermined groups should be encouraged to speak.
protected. Everyone has equal opportunities. This doesn’t guarantee
that society will be perfect and everyone will always be happy.
However, everyone will have a fighting chance at the life they want.
d.) Equity

MNI NOTES |21

They aren’t held back by things out of their control like systemic 1935 Constitution
obstacles or discrimination.
• Social Justice meant “justice to the common tao”.
Example of Social Justice Issues • Concept of Social Justice is provided in
o Art. 2, Section 5 which states that “the State must
• Racial Equality
ensure the well-being and economic security of the
• Gender Equality
people.”
• LGBTQ+ rights
o Art 13, Sec 6: the State shall afford protection to
EQUITY labor, especially to working men and minors, and
shall regulate the relations between landowner and
→ refers to fair opportunity for everyone to attain their full health tenant, and between labor and capital in industry and
potential regardless of demographic, social, economic or geographic in agriculture. The State may provide for compulsory
strata. arbitration.
Equality seeks to make everyone equal, • The scope is principally socio-economic well-being.

equity, on the other hand, seeks to address the underlying and 1973 Constitution
systemic differences of opportunity and access to social resources.
• Concept of social justice is also under the Declaration of
This is more important because we aren't all the same, some people
Principles and State Policies
need more help than others.
o Art 2, Sec 6: the State shall promote social justice to
Do we improve education to solve economic problems or should we ensure the dignity, welfare, and security of all the
address first the economic problems that lead to poor education? people. Towards this end the State shall regulate the
acquisition, ownership, use, enjoyment, and
disposition of private property, and equitably diffuse
MONSOD ARTICLE property and ownership and profits.

Poverty results not from natural market forces but from the way we 1987 Constitution
have shaped corporate law, labor law, employment law, trade law, • Builds on the concept of the previous Constitutions
education law, and also property law. Poverty is neither a natural
• Provides that: the State shall promote social justice in all
disaster nor an act of God. It is a preventable disease. The question is
phases of national development.
not whether we can do anything about it; the question is whether we
• Separate Article (Article 13)
want to.
• More encompassing than in the previous Constitutions.
Social Justice ---- 1935, 1973, 1987 Constitution

MNI NOTES |22

 Adjusting starting positions is what social justice is about in the
Philippine setting.
International affirmation of rights is institutionalized in the Universal
Declaration of Human Rights, which has attained universal -the distribution measure in adjusting starting positions:
acceptance. This international affirmation is critical because rights
:income reform programs
must be connected with obligations.
→ involves near- and medium-term programs such as
The article believes that the legal profession, including the SC over
conditional cash transfer program and over the long-
the years, has not measured up to what Justice Carpio, posed as its
term, the access of the poor to quality services
primary challenge, “to close the gap between law and justice”.
education and quality health services.
Human beings have needs, and we cannot live without access to the
→ until their health and education services are of the
things we need. Both sovereignty and property are premised on
same quality as those enjoyed by children of the rich,
exclusion.
the children of the poor cannot break out the vicious
How do we reconcile our needs and our borders? cycle of poverty, and social justice will not be served.

To be a member of the ‘working poor’ is to be an anonymous donor, :asset reform programs

a nameless benefactor, to everyone else.
→ consist of principally of four laws:
-the ‘working poor’ as they ter it, are in fact the major
a.) Agrarian Reform – RA 6657 & RA 9700
philanthropists of our society. They neglect their own children
so that te children of others will be cared for; they live in b.) Urban Land Reform and Housing
substandard housing so that other homes will be shiny and
perfect; they endure privation so that inflation will be low and c.) IPRA Law
stock prices high d.) Fisheries Code
1987 Constitution, does not mandate total equality, but only equitable Jurisprudential pronouncement on Social Justice, by Justice Laurel:
diffusion.
The promotion of social justice is to be achieved not through a
-It is consistent with the kind of economy it promotes based mistaken sympathy towards any given group. Social justice is neither
on “freedom of initiative and self-reliance”, which recognizes communism, nor despotism, nor atomism, nor anarchy, but the
the “indispensable role of private sector, encourages private humanization of laws and the equalization of social and economic
enterprise, and provides incentives to needed investments. forces by the State so that justice in its rational and objectively secular
conception may at least be approximated. Social justice means the

MNI NOTES |23

promotion of the welfare of all the people, the adoption by the
Government of measures calculated to insure economic stability of all
the component elements of society, through the maintenance of a
proper economic and social equilibrium in the interrelations of the
members of the community, constitutionally, through the adoption of
measures legally justifiable, or extra-constitutionally, through the
exercise of powers underlying the existence of all governments on the
time-honored principle of salus populi est suprema lex.

Social justice, therefore must be founded on the recognition of the

necessity of interdependence among diverse units of a society and of
the protection that should be equally and evenly extended to all groups
as a combined force in our social and economic life, consistent with
the fundamental and paramount objective of the state of promoting the
health, comfort, and quiet of all persons, and bringing about ‘ the
greatest good to the greatest number’.

“the greatest good for the greatest number” can be invoked either to
favor the poor or to favor the rich, both supposedly inspired by the
vision of social justice.

As far as the social justice principle is concerned, there is the

translation reality of its significance as popularized by, Pres
Magsaysay --- he who has less in life should have more in law.

MNI NOTES |24

(Phil sugar v prudencio) They apply with equal force to those who, notwithstanding their more
comfortable position in life, are equally deserving of protection from
social justice, not the one in the mind of the authors of our
the courts.
Constitution — all-embracing, inspired by the spirit of Christian
charity, based on the principle of universal brotherhood, intended "to Social justice is not a license to trample on the rights of the rich in the
insure the well-being and economic security of all the people" guise of defending the poor, where no act of injustice or abuse is being
committed against them.

(PLDT v NLRC)

The policy of social justice is not intended to countenance wrongdoing

simply because it is committed by the underprivileged.

Compassion for the poor is an imperative of every humane society but

only when the recipient is not a rascal claiming an undeserved
privilege.

Social justice cannot be permitted to be refuge of scoundrels any more

than can equity be an impediment to the punishment of the guilty.

Those who invoke social justice may do so only if their hands are clean
and their motives blameless and not simply because they happen to be
poor.

This great policy of our Constitution is not meant for the protection of
those who have proved they are not worthy of it, like the workers who
have tainted the cause of labor with the blemishes of their own
character.

(Heirs of jugalbot v CA)

On one final note, it may not be amiss to stress that laws which have
for their object the preservation and maintenance of social justice are
not only meant to favor the poor and underprivileged.

MNI NOTES |25

MODULE 5: THE HUMAN RIGHTS o Has to seek authority from the regular courts to
exercise such powers.
PROTECTION SYSTEM REMEDIES AND
o Under its investigative powers, upon finding that an
PROCEDURES individual violated human rights which is also a
What do you mean by remedies for enforcement of human rights? criminal offense, the CHR has to refer the matter for
prosecution to the DOJ for prosecution.
For every right, there must be an effective remedy. These remedies are
developed by the law -making bodies in which people may use to seek
proper course of action in the event that their human rights have been A. CIVIL REMEDIES
violated.
A human rights victim can file a civil action for damages in the
For rights to be fully enjoyed and for rights to be amply protected from appropriate trial courts under Article 32 of the Civil Code,
harm, injury, and assail, originating from State and non-State actors,
remedies must be in place and readily available anytime and [any public officer or individual who obstructs, defeats, or violates the
anywhere. rights and liberty of the individual under he BOR is liable for
damages.]
I. Local Remedies: Civil, Criminal, Administrative
This may be proved only by a preponderance of evidence. Moral
NO HUMAN RIGHTS COURT IN THE PHILIPPINES. damages, exemplary damages, costs of suit and attorney's fees may be
awarded by the court as indemnity.
• There are no specific procedural rules to effectively
implement the international instruments on human rights The civil liability under Article 32 of the Civil Code is separate and
• The inherent weakness can be attributed to the Philippine independent from the civil liability that springs from criminal liability
Constitution. under Article 100 of the Revised Penal Code.
o Established the CHR, to investigate only all forms of
human rights violations involving civil and political Civil sanctions as an offshoot of a civil remedy availed of by a human
rights rights victim is acknowledged and affirmed by
o SC even ruled that the CHR, is only an investigative • Section 12(4), Article III (Bill of Rights) of The 1987
body on civil and political rights, but not economic Constitution,
rights • by Section 21 of the Supreme Court’s AM. No. 07-9- 12-SC
o NO POWER to adjudicate cases (The Rule on the Writ ofAmparo),
o CANNOT issue preliminary injunctions or • Section 20 of the Supreme Court’s A.M. No. 08-1-16-SC (The
restraining orders Rule on the Writ of Habeas Data) and

MNI NOTES |26

 • Sections 1 Rule 10 of the Supreme Court’s AM. No. 09-6-8- Under the Revised Administrative Code of 1987, the heads of the
SC (The Rule of Procedure for Environmental Cases) bureaus or office has the authority to discipline his employees in
line with Sections 30 and 36 of Chapter 6, Book IV, Revised
Procedure:
Administrative Code of 1987.
• The human rights victim may opt to file a complaint with the
Commission on Human Rights whose task is solely fact-
finding investigation. Discuss the procedures on how a complaint for violation of Human
• After investigation, prosecution will be handled by the Rights in the Philippines is filed.
Department of Justice until case is resolved by the court.
• BHRAO (Barangay Human Rights Action Officer)
• The complaint can be filed for specific crimes relating to
receives and process the complaints lodged by an individual
categories of human rights violations like:
before their office and is the one responsible to asses should
o crimes violating the right of the people to be secure in
there indeed a Human Rights Violation or within the
their persons, houses, papers, and effects against
jurisdiction of the CHR.
unreasonable searches and seizures
• Should there be a cause established under the jurisdiction of
o crimes violating the right to freedom of assembly
the CHR, the complainant will be asked to provide documents
o crimes violating the right to freedom of religion
and proofs for the case.
o crimes violating the right to freedom from
o At this stage, the CHR may start its investigation of
involuntary servitude
the case.
o crimes violating the right to life
• However, in any case CHR is empowered by the Constitution
o crimes violating the rights to liberty of abode
to investigate on its own even in the absence of any complaint,
B. ADMINISTRATIVE REMEDIES a Human Rights violation

Administrative remedies for human rights violations are Discuss the role of the Barangay in the enforcement of Human
acknowledged and affirmed in Rights.

• Section 12(4), Article III, Bill of Rights, The 1987 Barangay Officials being the governing bodies at the community
Constitution, level are:
• The Revised Administrative Code of 1987, o the ones who always receive complaints and disputes
• Section 21 of the Supreme Court’s A.M. No. 07-9-12-SC (The at the initial stage prior to any intervention of higher
Rule on the Writ ofAmparo) and agencies or authorities.
• Section 20 of Supreme Court’s A.M. No. 08-1-16-SC (The
Rule on the Writ of Habeas Data)

MNI NOTES |27

 o Together with the CHR and DILG, they have o Article 129 - act of maliciously obtaining search
instituted BHRAC, which empowers and systematize warrants and abuse in the service of warrants
the Barangay system to handle local disputes the o Article 130 - searching a domicile without witnesses
proper way. • Crimes violating the right to freedom of assembly
o Article 131 - prohibition, interruption and dissolution
C. CRIMINAL REMEDIES of peaceful meetings
o Article 153 - tumults and other disturbances of public
Penal sanctions are acknowledged and affirmed by: order
• Section 12(4), Article III (Bill of Rights) of The 1987 • Crimes violating the right to freedom of religion
Constitution; o Article 132 - interruption of religious worship
• Section 21 of the Supreme Court's A.M. No. 07-9-12-SC (The o Article 133 - offending the religious feelings
Rule on the Writ of Amparo); • Crimes violating the right to freedom from involuntary
• Section 20 of the Supreme Court's A.M. No. 08-1-16-SC (The servitude
Rule on the Writ of Habeas Data); and o Article 272 - slavery
• Section 1, Rule 10 of Supreme Court's A.M. No. 09-6-8-SC o Article 273 - retaining a minor in his service against
(The Rules of Procedure for Environmental Cases). the former's will
o Article 274 - compelling another to work for him
The human rights victim may opt to file a complaint with the against his will as a household servant or farm laborer
Commission on Human Rights (tasked to solely for fact-finding • Crimes violating the right to life
investigation) After investigation, prosecution will be handled by o Article 246 - parricide
the Department of Justice until case is resolved by the court. o Article 249 - homicide
o Article 255 - infanticide
The complaint can be filed for specific crimes relating to human o Article 256 - intentional abortion
rights violations like: o Article 257 - unintentional abortion
o Article 262 - mutilation
• Crimes violating the right of the people to be secure in their o Article 263 - serious physical injuries
persons, houses, papers and effects against unreasonable o Article 265 - less serious physical injuries
searches and seizures • Crimes violating the prohibition on torture
o Article 124 - arbitrary detention o Article 235 - maltreatment of prisoners
o Article 125 - unlawful arrest o Articles 262-266 - offender is not vested with custody
o Article 128 - violation of domicile of the prisoner but commits only physical injuries

MNI NOTES |28

 • Crimes violating the rights to liberty of abode • Bi-Annual Publication of Human Rights Journal
o Article 127 - expulsion • Quarter release of Newsletter, Batingaw.
o Article 268 - grave coercion • UDHR Booklet, in 4 Dialects (Tagalog, Kapangpangan,
Ilokano, Cebuano)
Since human rights violations are crimes under the Revised Penal • Featured Stories of CHR’s Accomplishments and Relevant
Code, a human rights victim can file a criminal complaint News.
direct to the Office of the Prosecutor (City or Provincial • Tabloids, Magazines and Newspapers (published weekly)
Prosecutor). • TV Plugs including testimonies
• Reproduction of Human Rights Sticker – “HR Protection
What is the role of the Philippine Commission on Human Rights Sticker”
in the enforcement of Human Rights Laws? Cite concrete • Other materials featuring current human rights issues
examples.
• Creative Dance Workshop for Children
• Research Studies:
The Philippine Commission on Human Rights is a constitutional
• Enhancing GO – NGO Collaboration
mandate,
• Building alliance for Human Rights Legislation
o which is tasked to ensure effective and efficient
enforcement of Human Rights Laws. • HR-Social Reform for Disadvantageous Sectors including
o It is responsible for the Seminars, Trainings, their service providers.
Promotion, Dissemination and sustainability of • Dispute Resolutions
Human Rights education. • Union Perspective
• CHR – GO – NGO Collaboration towards monitoring
One of the most significant accomplishments of the agency is its Philippine Government Compliance with International Treaty
Initiative to make a special Human Rights Education System for Obligations on Human Rights.
Military, Police and other Law Enforcement Agencies in which they
were recognized by UN & UNESCO. Other may also cite Article XIII Section 18 of the Constitution –
CHR powers and function.
Some of the examples are: (1) Investigate, on its own or on complaint by any party, all forms of
• Advocacy Courses on Human Rights and International human rights violations involving civil and political rights;
Humanitarian Law (HR – IHL)
• Curricula for the Police / Jail personnel and (2) Adopt its operational guidelines and rules of procedure, and cite
Correction Officers. for contempt for violations thereof in accordance with the Rules of
• Extensive Training Course for AFP, PNP, BJMP Court;

MNI NOTES |29

(3) Provide appropriate legal measures for the protection of human Commission on Human Rights (ART. XIII)
rights of all persons within the Philippines, as well as Filipinos
CHR Composed of:
residing abroad, and provide for preventive measures and legal aid
services to the underprivileged whose human rights have been violated • Chairman
or need protection; • 4 Members

(4) Exercise visitorial powers over jails, prisons, or detention Qualifications:

facilities; • Natural-born citizen
• Majority must be members of the Bar
(5) Establish a continuing program of research, education, and
• Others provided by law
information to enhance respect for the primacy of human rights;
Powers & Functions:
(6) Recommend to Congress effective measures to promote human
rights and to provide for compensation to victims of violations of • Investigate violations of human rights
human rights, or their families; including civil and political rights. (Cariño v CHR)
• Adopt operational guidelines
(7) Monitor the Philippine Government’s compliance with • Provide appropriate legal measures for all persons within
international treaty obligations on human rights; Philippinesas well as Filipinos residing abroad.
• Visitorialpowers over jails
(8) Grant immunity from prosecution to any person whose testimony • Establish continuing program of research on human rights
or whose possession of documents or other evidence is necessary or • Recommend to Congress effective measures of promotion of
convenient to determine the truth in any investigation conducted by it HR (EPZA v CHR)
or under its authority; • Monitor Government’s compliance
• Grant immunity from prosecution
(9) Request the assistance of any department, bureau, office, or agency • Request assistance from any agency
in the performance of its functions; • Appoint its officers
• Perform other functions
(10) Appoint its officers and employees in accordance with law; and

(11) Perform such other duties and functions as may be provided by

law.

MNI NOTES |30

II. International Remedies: UN, Optional Protocols - However, before an individual may lodge the complaint to the
United Nation bodies,
United Nations Systems
he / she shall need to exhaust all the remedies available in his
• Optional Protocol to International Covenant on Civil and
/ her local state policies.
Political Rights adopted in 1966 (Ratified by the Philippines
on August 22, 1989). - In the event that the complainant is not satisfied with the local
• The International Covenant on Elimination of all Forms of remedy, the HRC established under the Article 28 of the Covenant will
Racial Discrimination (Ratified by the Philippines on consider the complaint together with the available evidence by both
September 15, 1967). parties.
• Convention Against Torture and Other Cruel Inhuman or
What are the remedies for gross violations of Human Rights?
Degrading Treatment or Punishment (Ratified on June 18,
1986). - An individual may lodge his/her complaint with the International
• 1503 Procedure Criminal Tribunal

Through International Tribunals Briefly state the jurisdiction and functions of the International
Criminal Court.
• International Criminal Tribunal for Violations of
Humanitarian Law • The jurisdiction will only take effect after a state becomes a
• International Criminal Court (ICC) Rome Statute party and after the entry into force of the Statute.
• Through National or Domestic Tribunals • Only until then that the ICC can exercise its jurisdiction.
• Governed by Local State Policies • It has the power to try individuals who violated international
humanitarian law even if committed in an internal war.
May an individual file complaint for violations of human rights in Examples are:
United Nation bodies? • Killing fields in Cambodia, Rwanda, Somalia and Sudan and
Yes. recently the Ethnic cleansing in Yugoslavia.
• The State Consent has no power in this jurisdiction.
- An individual whose human right was violated may lodge his / her
complaint to the United Nation bodies in cases where the respondent A Military commander shall be criminally responsible for the
is the Government. crimes committed by a person pursuant to an order of the
Government
- Provided that the respondent Government has ratified the
Covenant and its Optional Protocol.

MNI NOTES |31

 INVESTIGATION OF violators and criminals who may have escaped from
COMMUNICATIONS/COMPLAINTS the national jurisdiction where they committed serious
crimes, namely, genocide, crimes against humanity,
-most effective human rights complaints systems at the universal
war crimes and aggression.
level.
3 WAYS FOR AN INVESTIGATION TO BE INITIATED
• 95 of the 144 State Parties to the ICCPR were parties to
BY THE ICC:
the First Optional Protocol and submit themselves to the
jurisdiction of the Human Rights Committee in cases • a State Party may refer as situation to the Prosecutor,
alleged individual human rights violations. where it appears that one or more crimes within the
• 844 individual communications/complaints relating to 59 jurisdiction of the Court was committed;
States have so far been dealt with by the Committee. • the Security Council may refer a situation to the
• Under this procedure, only individuals and not groups, Prosecutor; and
NGOs or other legal entities, may submit a • the Prosecutor may initiate investigation motu proprio or
communication to the Committee under Articles 1 and 2 on her own, on the basis of information received from any
of the Optional Protocol. reliable source as to the commission of crimes.
• The Committee's decisions on the merits of the case are
Prosecutor then applies for a warrant of arrest with the Court's Pre-
structured like court judgments.
Trial Chamber for the arrest and surrender of the suspect. If a
• Individual members may add their dissenting or
approved, a warrant of arrest shall issue.
concurring opinions to the decisions.
THE PUBLIC 1235 PROCEDURE
THE INTERNATIONAL CRIMINAL COURT
- authorizes the Commission on Human Rights who are elected by
- considered one of the most ambitious international legal
the Economic and Social Council and the Sub-Commission on
initiatives in the history of modern law and the ICC as the
Prevention of Discrimination and Protection of Minorities to
important new institution for human rights in the new century,
debate, during their annual sessions, the question of the violation
which has power to investigate, prosecute, and convict
of human rights and fundamental freedoms.
individuals.
THE CONFIDENTIAL 1503 PROCEDURE
• Adopted on July 17, 1998 and 92 nations have ratified the
Rome Statute of the ICC and 139 States have signed the - adopted by the ECOSOC provides for a non-confidential
treaty. complaints procedure in order to deal with communications
• exercises international jurisdiction over criminals to indicating a consistent pattern of gross and reliably attested
addresses the problem of preventing human rights violations of human rights and fundamental freedoms.

MNI NOTES |32

 • Individuals, groups and organizations may submit • Such supervision by the international community over the
complaints to the Secretary-General for confidential human rights situation in a specific country puts pressure
examination by the Commission and Sub-Commission. on the government of the State concerned to improve its
• The admissibility criteria specify, among them, that a human rights record.
complaint may not be anonymous and may not contain
thematic rapporteurs or working groups already formed were on
insulting or abusive language.
the issues of involuntary disappearances, torture, extra-judicial
• The Commission declares by a simple majority on the
executions, arbitrary detention, freedom of expression,
issues before it. It may decide to keep the matter under
xenophobia and racism, and violence against women.
review, to undertake further study, to appoint a special
rapporteur with a mandate to submit a confidential report • may examine relevant information from all reliable
to the Commission or to transfer the situation from the sources about violations of human rights wherever they
confidential 1503 procedure to the Public 1235 occur in the world. They may also visit specific countries,
Procedure. with the consent of the government concerned. They
• It may also make recommendations to ECOSOC which submit their annual reports to the Commission and these
deals with such recommendations in its public meetings. annual reports survey the information received by the
• ECOSOC cannot take any binding decisions, a public special thematic rapporteurs, the replies by governments
condemnation by ECOSOC of the human rights violation and their lack, the actions taken by the special rapporteur
in a specific country puts pressure on the government and any general comments or recommendations the
concerned to take its human rights obligations under the special rapporteur may wish to submit
UN Charter seriously. • To submit a complaint, an application form which is
available online must be filled out in its entirety and
SPECIAL COUNTRY RAPPORTEURS AND copies of all relevant documents must be included along
THEMATIC RAPPORTEURS with the application, which must be submitted by postal
2 types of instruments to supervise implementation of human mail.
rights around the world pursuant to ECOSOC Resolution 1235

• it has appointed specific country rapporteurs and

working groups mandated to report annually to the
Commission on the development of human rights
situation in the country for which they have been
appointed.

MNI NOTES |33

III. PREVENTIVE MECHANISMS o Legal assistance
o Research
A. National Human Rights Institution o Cooperation
• State-mandated bodies, independent of government, with -cooperating with NGOs, civil society, state actors,
broad constitutional or legal mandate to protect and promote and regional actors
human rights at the national level.
• Address the full range of human rights, including civil, o Promotion
political, economic, social, and cultural rights. -promoting culture thru training and awareness
• NHRIs are accredited with an internationally accepted quality raising activities on a variety of issue
label, on the basis of their compliance with the UN Paris
Principle. o Supporting Human Rights Defenders

UN Paris Principle
• Functions:
o Advising on international legal compliance • The Paris Workshop, held in 1991, was a first step in
o Monitoring the development of standards for National Human
Rights Institutions (NHRIs).
-Monitoring and investigating the human rights
situation on the ground The Paris Principles set out the main criteria that NHRIs are required
to meet:
o Advising
• Establishment under primary law or the Constitution
-advising government and other public bodies to
• A broad mandate to promote and protect human rights
address core human rights concerns, as well as to
• Formal and functional independence
eradicate all forms of discrimination
• Pluralism, representing all aspects of society
o Reporting • Adequate resources and financial autonomy
• Freedom to address any human rights issue arising
- reporting to the public, and international monitoring
• Annual reporting on the national human rights situation
bodies such as the UN etc.
• Cooperation with national and international actors, including
o Complaints handling civil society

- provide support for individuals to enforce their

rights through complaint handling

MNI NOTES |34

ACCREDITATION • Voting rights and ability to hold governance positions in
NHRI networks, such as ENNHRI and GANHRI
NHRIs are periodically accredited before the SCA. ‘Accreditation’
means that NHRIs are evaluated with reference to the Paris Principles. COMMISSION ON HUMAN RIGHTS

NHRIs are accredited with one of the following statuses: • an independent National Human Rights Institution
(NHRI) created under the 1987 Philippine
• A status – Fully compliant with Paris Principles
Constitution, established on 05 May 1987 by virtue of
• B status – Partly compliant with Paris Principles Executive Order No. 163.
• mandated to conduct investigations on human rights
• No status – Not compliant with Paris Principles
violations against marginalized and vulnerable
Why is accreditation important? sectors of the society, involving civil and political
rights.
The accreditation process is essential to the work of NHRIs because
• an “A” accredited NHRI, fully complying with the
it:
Paris Principles adopted by the United Nations
• Provides evidence of an NHRI’s trustworthiness as a credible General Assembly in 1995.
and independent actor • As an NHRI, the Commission upholds six
fundamental characteristics:
• Allows NHRIs to enhance their work by reflecting and acting o independence,
upon recommendations from the SCA o pluralism,
• Assists NHRIs in applying the Paris Principles in their o broad mandate,
national contexts, ultimately helping ensure their o transparency,
independence, pluralism, effectiveness and accountability o accessibility, and
o operational efficiency.
NHRIs with A status have specific participation rights in international • commits to deliver prompt, responsive, accessible,
and regional mechanisms, including: and excellent public ser vice for the protection and
• Speaking rights in the UN Human Rights Council and before promotion of human rights in accordance with
UN treaty bodies universal human rights principles and standards.

• Being valued as interlocutors for European mechanisms, such

as the OSCE, Council of Europe and EU institutions and
agencies

MNI NOTES |35

B. Reportorial Requirements o Convention on the Elimination of All Forms of
Discrimination Against Women,
• Reporting is an essential element of the human rights o the Convention on the Rights of a Child, etc.
monitoring cycle1 and a fundamental part of a field
presence’s human rights work and strategy.
• Human rights reports constitute a primary tool to record and
• Human rights reports should be accurate and
analyse information, present findings of monitoring and fact-
precise, based on information that has been carefully
finding activities, express concern about a human rights
corroborated according to agreed standards
problem, engage in dialogue and advocate with authorities,
• Reports should be self-standing and thorough,
and propose recommendations for corrective action.
requiring as little reference to previous reports or
• Reporting what has happened in a country or region or a
other documents as possible.
specific human rights incident is, therefore, a crucial step for
• should provide sufficient detail and information to
the development of strategies to address the situation.
accurately portray the human rights situation or
problem in a way that can be understood by the
intended audience, while also being concise.
• State Parties are generally required by the treaties to • should be written in simple and neutral language,
periodically submit reports to the Secretary-General of the without subjective elements, jargon or unnecessary
United Nations or to the monitoring body created by the adjectives.
treaty.
• should be clear, concise and well organized.
• contain an elaboration on the progress that the State Parties
• All information gathered through interviews that is
have achieved to fulfill their obligations under the Covenant
included in a report (internal or public) must be based
concerned as well as the factors and difficulties that may
on the prior informed consent of the interviewee.
retard their progress
• This reporting requirement is found in treaties like
o the International Covenant on Economic, Social and
IV. RA 10368 (The Human Rights Reparation and
Cultural Rights,
o the International Covenant on Civil and Political
Recognition Act of 2013)
Rights, Section 2. Declaration of Policy. — Section 11 of Article II
o the Convention on the Elimination of All Forms of of the 1987 Constitution of the Republic of the Philippines
Racial Discrimination, declares that the State values the dignity of every human,
o the Convention Against Torture, person and guarantees full respect for human rights. Pursuant
to this declared policy, Section 12 of Article III of the

MNI NOTES |36

 Constitution prohibits the use of torture, force, violence, injuries, sufferings, deprivations and damages they suffered
threat, intimidation, or any other means which vitiate the free under the Marcos regime.
will and mandates the compensation and rehabilitation of
Similarly, it is the obligation of the State to acknowledge the
victims of torture or similar practices and their families.
sufferings and damages inflicted upon persons whose
By virtue of Section 2 of Article II of the Constitution properties or businesses were forcibly taken over, sequestered
adopting generally accepted principles of international law as or used, or those whose professions were damaged and/or
part of the law of the land, the Philippines adheres to impaired, or those whose freedom of movement was
international human rights laws and conventions, the restricted, and/or such other victims of the violations of the
Universal Declaration of Human Rights, including the Bill of Rights.
International Covenant on Civil and Political Rights (ICCPR)
Section 3. Definition of Terms. — The following terms as
and the Convention Against Torture (CAT) and Other Cruel,
used in this Act shall mean:
Inhuman or Degrading Treatment or Punishment which
imposes on each State party the obligation to enact domestic (a) Detention refers to the act of taking a person into custody
legislation to give effect to the rights recognized therein and against his will by persons acting in an official capacity and/or
to ensure that any person whose rights or freedoms have been agents of the State.
violated shall have an effective remedy, even if the violation
is committed by persons acting in an official capacity. In fact, (b) Human rights violation refers to any act or omission
the right to a remedy is itself guaranteed under existing human committed during the period from September 21, 1972 to
rights treaties and/or customary international law, being February 25, 1986 by persons acting in an official capacity
peremptory in character (jus cogens) and as such has been and/or agents of the State, but shall not be limited to the
recognized as non-derogable. following:

Consistent with the foregoing, it is hereby declared the policy (1) Any search, arrest and/or detention without a valid search
of the State to recognize the heroism and sacrifices of all warrant or warrant of arrest issued by a civilian court of law,
Filipinos who were victims of summary execution, torture, including any warrantless arrest or detention carried out
enforced or involuntary disappearance and other gross human pursuant to the declaration of Martial Law by former President
rights violations committed during the regime of former Ferdinand E. Marcos as well as any arrest., detention or
President Ferdinand E. Marcos covering the period from deprivation of liberty carried out during the covered period on
September 21, 1972 to February 25, 1986 and restore the the basis of an "Arrest, Search and Seizure Order (ASSO)", a
victims’ honor and dignity. The State hereby acknowledges "Presidential Commitment Order {PCO)" or a "Preventive
its moral and legal obligation to recognize and/or provide Detention Action (PDA)" and such other similar executive
reparation to said victims and/or their families for the deaths, issuances as defined by decrees of former President Ferdinand

MNI NOTES |37

 E. Marcos, or in any manner that the arrest, detention or C. Aquino in the exercise of her legislative powers under the
deprivation, of liberty was effected; Freedom Constitution;

(2) The infliction by a person acting in an official capacity (6) Any act or series of acts causing, committing and/or
and/or an agent of the State of physical injury, torture, killing, conducting the following:
or violation of other human rights, of any person exercising
(i) Kidnapping or otherwise exploiting children of persons
civil or political rights, including but not limited to the
suspected of committing acts against the Marcos regime;
freedom of speech, assembly or organization; and/or the right
to petition the government for redress of grievances, even if (ii) Committing sexual offenses against human rights victims
such violation took place during or in the course of what the who are detained and/or in the course of conducting military
authorities at the time deemed an illegal assembly or and/or police operations; and
demonstration: Provided, That torture in any form or under
any circumstance shall be considered a human rights (iii) Other violations and/or abuses similar or analogous to the
violation; above, including those recognized by international law.

(3) Any enforced or involuntary disappearance caused upon a (c) Human Rights Violations Victim (HRVV) refers to a person
person who was arrested, detained or abducted against one’s whose human rights were violated by persons acting in an
will or otherwise deprived of one’s liberty, as defined official capacity and/or agents of the State as defined herein.
in Republic Act No. 10350 1, otherwise known as the "Anti- In order to qualify for reparation under this Act, the human
Enforced or Involuntary Disappearance Act of 2012″; rights violation must have been committed during the period
from September 21, 1972 to February 25, 1986: Provided,
(4) Any force or intimidation causing the involuntary exile of however, That victims of human rights violations that were
a person from the Philippines; committed one (1) month before September 21, 1972 and one
(1) month after February 25, 1986 shall be entitled to
(5) Any act of force, intimidation or deceit causing unjust or
reparation, under this Act if they can establish that the
illegal takeover of a business, confiscation of property,
violation was committed:
detention of owner/s and or their families, deprivation of
livelihood of a person by agents of the State, including those (1) By agents of the State and/or persons acting in an official
caused by Ferdinand E. Marcos, his spouse Imelda R. Marcos, capacity as defined hereunder;
their immediate relatives by consanguinity or affinity, as well
as those persons considered as among their close relatives, (2) For the purpose of preserving, maintaining, supporting or
associates, cronies and subordinates under Executive Order promoting the said regime; or
No. 1, issued on February 28, 1986 by then President Corazon

MNI NOTES |38

 (3) To conceal abuses during the Marcos regime and/or the (4) Any person or group/s of persons acting with the
effects of Martial Law. authorization, support or acquiescence of the State during the
Marcos regime.
(d) Persons Acting in an Official Capacity and/or Agents of
the State.—The following persons shall be deemed persons (e) Torture refers to any act by which severe pain or suffering,
acting in an official capacity and/or agents of the State under whether physical or mental, is intentionally inflicted on any
this Act: person under the custody of persons acting in an official
capacity and/or agents of the State, as defined by law,
(1) Any member of the former Philippine Constabulary (PC),
jurisprudence, international conventions and Republic Act
the former Integrated National Police (INP), the Armed
No. 9745, otherwise known as the "Anti-Torture Act of 2009″.
Forces of the Philippines (AFP) and the Civilian Home
Defense Force (CHDF) from September 21, 1972 to February CHAPTER II
25, 1986 as well as any civilian agent attached thereto; and
THE HUMAN RIGHTS VICTIMS’ CLAIMS BOARD
any member of a paramilitary group even if one is not
organically part of the PC, the INP, the AFP or the CHDF so Section 8. Creation and Composition of the Human Rights
long as it is shown that the group was organized, funded, Victims’ Claims Board. — There is hereby created an
supplied with equipment, facilities and/or resources, and/or independent and quasi-judicial body to be known as the
indoctrinated, controlled and/or supervised by any person Human Rights Victims’ Claims Board, hereinafter referred to
acting in an official capacity and/or agent of the State as herein as the Board. It shall be composed of nine (9) members, who
defined; shall possess the following qualifications:
(2) Any member of the civil service, including persons who (a) Must be of known probity, competence and integrity;
held elective or appointive public office at any time from
September 21, 1972 to February 25, 1986; (b) Must have a deep and thorough understanding and
knowledge of human rights and involvement in efforts against
(3) Persons referred to in Section 2(a) of Executive Order No. human rights violations committed during the regime of
1, creating the Presidential Commission on Good Government former President Ferdinand E. Marcos;
(PCGG), issued on February 28, 1986 and related laws by then
President Corazon C. Aquino in the exercise of her legislative (c) At least three (3) of them must be members of the
powers under the Freedom Constitution, including former Philippine Bar who have been engaged in the practice of law
President Ferdinand E. Marcos, spouse Imelda R. Marcos, for at least ten (10) years; and
their immediate relatives by consanguinity or affinity, as well
as their close relatives, associates, cronies and subordinates;
and

MNI NOTES |39

 (d) Must have a clear and adequate understanding and (d) Approve with finality all eligible claims under this Act;
commitment to human rights protection, promotion and
(e) Deputize appropriate government agencies to assist it in
advocacy.
order to effectively perform its functions;
The Human Rights Victims’ Claims Board shall be attached
(f) Promulgate such rules as may be necessary to carry out the
to but shall not be under the Commission on Human Rights
purposes of this Act, including rules of procedure in the
(CHR).
conduct of its proceedings, with the Revised Rules of Court
The Board shall organize itself within thirty (30) days from of the Philippines having suppletory application;
the completion of appointment of all nine (9) members and
(g) Exercise administrative control and supervision over its
shall thereafter organize its Secretariat.
Secretariat;
Section 9. Appointment to the Board. — The President shall
(h) The Board, at its discretion, may consult the human rights
appoint the Chairperson and the other eight (8) members of
organizations mentioned in Section 9 herein; and
the Board: Provided, That human rights organizations such
as, but not limited to, the Task Force Detainees of the (i) Perform such other duties, functions and responsibilities as
Philippines (TFDP), the Free Legal Assistance Group may be necessary to effectively attain the objectives of this
(FLAG), the Movement of Attorneys for Brotherhood, Act.
Integrity and Nationalism (MABINI), the Families of Victims
of Involuntary Disappearance (FIND) and the Samahan ng Section 11. Resolution, of Claims. — The Board shall be
mga Ex-Detainees Laban sa Detensyon at Aresto (SELDA) composed of three (3) divisions which shall function
may submit nominations to the President. simultaneously and independently of each other in the
resolution of claims for reparation. Each division shall be
Section 10. Powers and Functions of the Board. — The composed of one (1) Chairperson, who shall be a member of
Board shall have the following powers and functions: the Philippine Bar and two (2) members to be appointed by
the Board en banc.
(a) Receive, evaluate, process and investigate applications for
claims under this Act; Section 12. Emoluments. — The Chairperson and members of
the Board shall have the rank, salary, emoluments and
(b) Issue subpoena/s ad testificandum and subpoena/s duces
allowances equivalent to s Presiding Justice and Associate
tecum;
Justice of the Court of Appeals, respectively.
(c) Conduct independent administrative proceedings and
Section 13. Secretariat of the Board. — The Board shall be
resolve disputes over claims;
assisted by a Secretariat which may come from the existing

MNI NOTES |40

 personnel of the CHR, without prejudice to the hiring of budget: Provided, That it shall not exceed Fifty million pesos
additional personnel as determined by the Board to (P50,000,000.00) a year
accommodate the volume of required work. The following
Section 15. Proper Disposition of Funds. — The Board shall
shall be the functions of the Secretariat:
ensure that funds appropriated or those which may become
(a) Receive, evaluate, process and investigate applications for available as reparation for HRVVs are properly disbursed in
claims under this Act; accordance with the policies stated by Congress and relevant
government rules, regulations and accounting procedures.
(b) Recommend to the Board the approval of applications for
claims;

(c) Assist the Board in technical functions; and V. Republic Act No. 7309 (Creation of the Board of
(d) Perform other duties that may be assigned by the Board.
Claims)

The Chairperson of the Board shall appoint a Board Secretary - AN ACT CREATING A BOARD OF CLAIMS UNDER
who shall head the Secretariat for the duration of the existence THE DEPARTMENT OF JUSTICE FOR VICTIMS OF
of the Board. There shall be a Technical Staff Head assisted UNJUST IMPRISONMENT OR DETENTION AND
by five (5) Legal Officers and three (3) Paralegal Officers; and VICTIMS OF VIOLENT CRIMES AND FOR OTHER
an Administrative Staff Head assisted by three (3) PURPOSES
Administrative Support Staff. Section 1. Creation and Composition of the Board. – There
When necessary, the Board may hire additional contractual is hereby created a Board of Claims under the Department of
employees or contract a service provider to provide services Justice, hereinafter referred to as the Board, to be composed
of counselors, psychologists, social workers and public of one (1) chairman and two (2) members to be appointed by
education specialists, among others, to augment the services the Secretary of the said department.
of the Secretariat: Provided, That the maximum contract Section 2. Powers and Functions of the Board. – The Board
amount per year shall not exceed more than fifteen percent shall have the following powers and functions:
(15%) of the total annual operating budget of the Board.
(a) to receive, evaluate, process and investigate application for
Section 14. Operating Budget of the Board.— The operating claims under this Act;
budget of the Board shall be funded from the Ten billion peso
{P10,000,000,000.00) fund, with Ten million pesos (b) to conduct an independent administrative hearing and
(P10,000,000.00) as its initial operating resolve application for claims, grant or deny the
same;lawphi1Ÿ

MNI NOTES |41

 (c) to deputize appropriate government agencies in order to In all other cases, the maximum amount for which the Board
effectively implement its functions; and may approve a claim shall not exceed Ten thousand pesos
(P10,000.00) or the amount necessary to reimburse the
(d) to promulgate rules and regulations in order to carry out
claimant the expenses incurred for hospitalization, medical
the objectives of this Act.
treatment, loss of wage, loss of support or other expenses
Section 3. Who may File Claims. – The following may file directly related to injury, whichever is lower. This is without
claims for compensation before the Board: prejudice to the right of the claimant to seek other remedies
under existing laws.
(a) any person who was unjustly accused, convicted and
imprisoned but subsequently released by virtue of a judgment Section 5. When to File Claims. – Any person entitled to
of acquittal; compensation under this Act must, within six (6) months after
being released from imprisonment or detention, or from the
(b) any person who was unjustly detained and released date the victim suffered damage or injury, file his claim with
without being charged; the Department, otherwise, he is deemed to have waived the
(c) any victim of arbitrary or illegal detention by the same. Except as provided for in this Act, no waiver of claim
authorities as defined in the Revised Penal Code under a final whatsoever is valid.
judgment of the court; andlawphi1© Section 6. Filing of Claims by Heirs. – In case of death or
(d) any person who is a victim of violent crimes. For purposes incapacity of any person entitled to any award under this Act,
of this Act, violent crimes shall include rape and shall likewise the claim may be filed by his heirs, in the following order: by
refer to offenses committed with malice which resulted in his surviving spouse, children, natural parents, brother and/or
death or serious physical and/or psychological injuries, sister.
permanent incapacity or disability, insanity, abortion, serious Section 7. Resolution of Claims. – The Board shall resolve
trauma, or committed with torture, cruelly or barbarity. the claim within thirty (30) working days after filing of the
Section 4. Award Ceiling. – For victims of unjust application.
imprisonment or detention, the compensation shall be based The Board shall adopt an expeditious and inexpensive
on the number of months of imprisonment or detention and procedure for the claimants to follow in order to secure their
every fraction thereof shall be considered one month; claims under this Act.
Provided, however, That in no case shall such compensation
exceed One Thousand pesos (P1,000.00) per month. Section 8. Appeal. – Any aggrieved claimant may appeal,
within fifteen (15) days from receipt of the resolution of the

MNI NOTES |42

 Board, to the Secretary of Justice whose decision shall be final Compensation Fund to be administered by the Department of
and executory. Justice.

Section 9. Funding. – For purposes of this Act, the initial VI. RA 8505 (Rape Victim Assistance and Protection
amount of Ten million pesos (P10,000,000.00) is hereby Act of 1988)
authorized to be appropriated from the funds of the National
Treasury not otherwise appropriated. - AN ACT PROVIDING ASSISTANCE AND
PROTECTION FOR RAPE VICTIMS, ESTABLISHING
The subsequent annual funding shall also partly come from FOR THE PURPOSE A RAPE CRISIS CENTER IN EVERY
one percent (1%) of the net income of the Philippine PROVINCE AND CITY, AUTHORIZING THE
Amusement and Gaming Corporation and one percent (1%) APPROPRIATION OF FUNDS THEREFOR, AND FOR
of the proceeds and sales and other disposition and military OTHER PURPOSES.
camps ion Metro Manila by the Base Conversion and
Development Authority.
Section 1. Title.— This Act shall be known as the “Rape
The proceeds from any contract relating to the depiction of a Victim Assistance and Protection Act of 1998.“
crime in a movie, book, newspaper, magazine, radio or
television production, or live entertainment, of any kind, or in Sec. 2. Declaration of policy.— It is hereby declared the
any other form of commercial exploitation of any convict's policy of the State to provide necessary assistance and
story, recollection, opinion and emotions with regard to the protection for rape victims. Towards this end, the government
offense committed shall not be released to convict in a shall coordinate its various agencies and non-government
criminal case or his heirs, agents, assignees or successors in organizations to work hand in hand for the establishment and
interest until full compensation for damages suffered by a operation of a rape crisis center in every province and city that
awarded to, the victim, his heirs or successors in interest is shall assist and protect rape victims in the litigation of their
paid or arranged for, and the state is able to collect/assess fines cases and their recovery.
and costs and any other amounts due it in case of a conviction
by final judgment. Such damages shall include, but shall not Sec. 3. Rape Crisis Center.— The Department of Social
be limited to, judicial awards, funeral expenses, medical Welfare and Development (DSWD), the Department of
expenses, lost earning and the like.lawphi1ŸITC Health (DOH), the Department of the Interior and Local
To ensure the continuity of the funding requirements under Government (DILG), the Department of Justice (DOJ), and a
this Act, the amount of Five pesos (P5.00) shall be set aside lead non-government organization (NGO) with proven track
from each filing fee in every civil case filed with the court, the record or experience in handling sexual abuse cases, shall
total proceeds of which shall constitute the Victim establish in every province and city a rape crisis center located

MNI NOTES |43

 in a government hospital or health clinic or in any other offended party; and
suitable place for the purpose of: (c) Immediately make a report on the action taken.

(a) Providing rape victims with psychological counselling, It shall be the duty of the police officer or the examining
medical and health services, including their medico-legal physician, who must be of the same gender as the offended
examination; party, to ensure that only persons expressly authorized by the
(b) Securing free legal assistance or service, when necessary, offended party shall be allowed inside the room where the
for rape victims; investigation or medical or physical examination is being
(c) Assisting rape victims in the investigation to hasten the conducted.
arrest of offenders and the filing of cases in court;
For this purpose, a women’s desk must be established in every
(d) Ensuring the privacy and safety of rape victims;
police precinct throughout the country to provide a police
(e) Providing psychological counselling and medical services
woman to conduct investigation of complaints of women rape
whenever necessary for the family of rape victims;
victims. In the same manner, the preliminary investigation
(f) Developing and undertaking a training program for law
proper or inquest of women rape victims must be assigned to
enforcement officers, public prosecutors, lawyers, medico-
female prosecutor or prosecutors after the police shall have
legal officers, social workers, and barangay officials on
endorsed all the pertinent papers thereof to the same office.
human rights and responsibilities; gender sensitivity and legal
management of rape cases; and
Sec. 5. Protective measures.— At any stage of the
(g) Adopting and implementing programs for the recovery of
investigation, prosecution and trial of a complaint for rape, the
rape victims.
police officer, the prosecutor, the court and its officers, as well
The DSWD shall be the lead agency in the establishment and as the parties to the complaint shall recognize the right to
operation of the Rape Crisis Center. privacy of the offended party and the accused. Towards this
end, the police officer, prosecutor, or the court to whom the
Sec. 4. Duty of the Police Officer.— Upon receipt by the complaint has been referred may, whenever necessary to
police of the complaint for rape, it shall be the duty of the ensure fair and impartial proceedings, and after considering
police officer to: all circumstances for the best interest of the parties, order a
closed-door investigation, prosecution or trial and that the
(a) Immediately refer the case to the prosecutor for
name and personal circumstances of the offended party and/or
inquest/investigation if the accused is detained; otherwise, the
the accused, or any other information tending to establish their
rules of court shall apply;
identities, and such circumstances or information on the
(b) Arrange for counselling and medical services for the
complaint shall not be disclosed to the public.

MNI NOTES |44

 The investigating officer or prosecutor shall inform the parties a. Ocampo v Abando (G.R. No. 176830, 2014)
that the proceedings can be conducted in a language or dialect
FACTS:
known or familiar to them.
On 26 August 2006, a mass grave was discovered by
Sec. 6. Rape shield.— In prosecutions for rape, evidence of elements of the 43rd Infantry Brigade of the Philippine Army
complainant’s past sexual conduct, opinion thereof or of at Sitio Sapang Daco, Barangay Kaulisihan, Inopacan, Leyte.
his/her reputation shall not be admitted unless, and only to the
extent that the court finds, that such evidence is material and contained skeletal remains of individuals believed to be
relevant to the case. victims of "Operation Venereal Disease" (Operation VD)
launched by members of the Communist Party of the
Sec. 7. Appropriations.— For the establishment and Philippines/New People’s Army/National Democratic
operation of the rape crisis centers during the first year of Front of the Philippines (CPP/NPA/NDFP) to purge their
implementation of this Act, the amount of One hundred ranks of suspected military informers.
twenty million pesos (P120,000,000.00) shall be charged Police Chief Inspector George L. Almaden of the Philippine
against the Organizational Adjustment Fund, as follows: Sixty National Police Regional Office 8 and Staff Judge Advocate
million pesos (P60,000,000.00) for the DSWD; and Twenty Captain Allan Tiu of the 8th Infantry Division of the
million pesos (P20,000,000.00) each for the DOH, DILG, and Philippine Army sent 12 undated letters to the Provincial
DOJ, respectively. Thereafter, the necessary amount for the Prosecutor of Leyte through Assistant Provincial Prosecutor
rape crisis centers shall be included in the budgetary Rosulo U. Vivero
allocations for the agencies concerned in the annual General
Appropriations Act. The letters requested appropriate legal action on 12
complaint-affidavits attached therewith accusing 71 named
Sec. 8. Implementing rules and regulations. — Within members of the (CPP/NPA/NDFP) of murder, including
ninety (90) days upon the approval of this Act, all concerned petitioners herein along with several other unnamed members.
agencies shall formulate rules and regulations as may be the Case Secretariat of the Regional and National Inter-
necessary for the proper implementation thereof. Agency Legal Action Group (IALAG) came up with the
names of ten (10) possible victims after comparison and
examination based on testimonies of relatives and witnesses.

Prosecutor Vivero issued a subpoena requiring, among

others, petitioners to submit their counter-affidavits and those
of their witnesses.

MNI NOTES |45

 Petitioner Ocampo submitted his counter-affidavit. the respondents were issued and served with Subpoena at their
last known address for them to submit their counter-affidavits
Petitioners Echanis and Baylosis did not file counter-
and that of their witnesses.
affidavits because they were allegedly not served the copy of
the complaint and the attached documents or evidence. Under the political offense doctrine, "common crimes,
perpetrated in furtherance of a political offense, are divested
Counsel of petitioner Ladlad made a formal entry of
of their character as "common" offenses and assume the
appearance on 8 December 2006 during the preliminary
political complexion of the main crime of which they are mere
investigation. However, petitioner Ladlad did not file a
ingredients, and, consequently, cannot be punished separately
counter-affidavit because he was allegedly not served a
from the principal offense, or complexed with the same, to
subpoena.
justify the imposition of a graver penalty.
The Information was filed before the Regional Trial Court
But when the political offense doctrine is asserted as a
(RTC) Hilongos, Leyte, presided by Judge Ephrem S.
defense in the trial court, it becomes crucial for the court to
Abando.
determine whether the act of killing was done in furtherance
Judge Abando issued an Order finding probable cause "in the of a political end, and for the political motive of the act to be
commission by all mentioned accused of the crime charged. conclusively demonstrated.
He ordered the issuance of warrants of arrest against them
However, petitioners were never arraigned in Criminal
with no recommended bail for their temporary liberty.
Case No. 06-944.1awp++i1 Even before the indictment for
rebellion was filed before the RTC Makati, petitioners
Ocampo, Echanis and Ladlad had already filed a petition
ISSUE: before this Court to seek the nullification of the Orders of the
1. Whether the present petition for certiorari and prohibition DOJ denying their motion for the inhibition of the members
is the proper remedy of petitioner Ocampo; of the prosecution panel due to lack of impartiality and
independence.
2. Assuming it is the proper remedy, whether he was denied
due process during preliminary investigation and in the We eventually ordered the dismissal of the rebellion case. It
issuance of the warrant of arrest; is clear then that a first jeopardy never had a chance to
attach.
RULING:

Petitioners were accorded due process during preliminary

investigation and in the issuance of the warrants of arrest.

MNI NOTES |46

 Republic v Sandoval (220 SCRA 124) 1993 (Mendiola barikada sa Mendiola sapagkat bubutasin din namin
Massacre) iyon at dadanak ang dugo . . . ."
FACTS: At around 1:00 p.m., the marchers reached Liwasang
The massacre was the culmination of eight days and Bonifacio where they held a brief program. It was at this
seven nights of encampment by members of the militant point that some of the marchers entered the eastern side
Kilusang Magbubukid sa Pilipinas (KMP) at the then of the Post Office Building, and removed the steel bars
Ministry (now Department) of Agrarian Reform (MAR) surrounding the garden. Thereafter, they joined the
at the Philippine Tobacco Administration Building along march to Malacañang. At about 4:30 p.m., they reached
Elliptical Road in Diliman, Quezon City. C.M. Recto Avenue.

The farmers and their sympathizers presented their Intelligence reports were also received that the KMP
demands for what they called "genuine agrarian was heavily infiltrated by CPP/NPA elements and that
reform". an insurrection was impending. The threat seemed grave
as there were also reports that San Beda College and
The KMP, led by its national president, Jaime Tadeo, Centro Escolar University would be forcibly occupied.
presented their problems and demands, among which
were: Citizens' Mendiola Commission (a body specifically
tasked to investigate the facts surrounding the incident,
(a) giving lands for free to farmers; Commission for short) stated that the government anti-
(b) zero retention of lands by landlords; and riot forces were assembled at Mendiola in a formation of
three phalanges,
(c) stop amortizations of land payments.
the marchers, at around 4:30 p.m., numbered about
On January 22, 1987, Tadeo's group instead decided to 10,000 to 15,000. From C.M. Recto Avenue, they
march to Malacañang to air their demands. Before the proceeded toward the police lines. No dialogue took
march started, Tadeo talked to the press and TV media. place between the marchers and the anti-riot squad.
He uttered fiery words, the most telling of which were: It was at this moment that a clash occurred and,
". . . inalis namin ang barikada bilang kahilingan ng borrowing the words of the Commission "pandemonium
ating Presidente, pero kinakailangan alisin din niya ang broke loose". The Commission stated in its findings,

MNI NOTES |47

 After the clash, twelve (12) marchers were officially • The Commission also suggested that all the
confirmed dead, although according to Tadeo, there were commissioned officers of both the Western
thirteen (13) dead, but he was not able to give the name Police District and the INP Field Force, who were
and address of said victim. Thirty-nine (39) were armed during the incident, be prosecuted for
wounded by gunshots and twelve (12) sustained minor violation of paragraph 4(g) of Section 13, Batas
injuries, all belonging to the group of the marchers. Pambansa Blg. 880, the Public Assembly Act of
1985.
Of the police and military personnel, three (3)
• The Commission's recommendation also
sustained gunshot wounds and twenty (20) suffered
included the prosecution of the marchers, for
minor physical injuries such as abrasions, contusions and
carrying deadly or offensive weapons, but whose
the like.
identities have yet to be established.
President Corazon C. Aquino issued Administrative • As for Jaime Tadeo, the Commission said that he
Order No. 11, dated January 22, 1987, which created should be prosecuted both for violation of
the Citizens' Mendiola Commission. paragraph (a), Section 13, Batas Pambansa Blg.
The body was composed of retired Supreme Court 880 for holding the rally without a permit and for
Justice Vicente Abad Santos as Chairman, retired violation of Article 142, as amended, of the
Supreme Court Justice Jose Y. Feria and Mr. Antonio U. Revised Penal Code for inciting to sedition.
Miranda, both as members. A.O. 11 stated • As for the following officers, namely: (1) Gen.
Ramon E. Montaño; (2) Police Gen. Alfredo S.
that the Commission was created precisely for the Lim; (3) Police Gen. Edgar Dula Torres; (4)
"purpose of conducting an investigation of the Police Maj. Demetrio dela Cruz; (5) Col. Cezar
disorder, deaths, and casualties that took place in the Nazareno; and (5) Maj. Felimon Gasmin, for
vicinity of Mendiola Bridge and Mendiola Street and their failure to make effective use of their skill
Claro M. Recto Avenue, Manila, and experience in directing the dispersal
the Commission recommended the criminal operations in Mendiola, administrative sanctions
prosecution of four unidentified, uniformed individuals, were recommended to be imposed.
shown either on tape or in pictures, firing at the direction the most significant recommendation of the
of the marchers. Commission was for the deceased and wounded victims

MNI NOTES |48

 of the Mendiola incident to be compensated by the that any party decides to litigate his/her claim. Therefore,
government. the Commission is merely a preliminary venue.
Notwithstanding such recommendation, no concrete The Commission is not the end in itself. Whatever
form of compensation was received by the victims. recommendation it makes cannot in any way bind the
State immediately, such recommendation not having
become final and, executory. This is precisely the
ISSUE: essence of it being a fact-finding body.

w/n the state waived its immunity While the Republic in this case is sued by name, the
ultimate liability does not pertain to the government.
w/n the govt is liable for damages
Although the military officers and personnel, then
RULING:
party defendants, were discharging their official
Under our Constitution the principle of immunity of functions when the incident occurred, their functions
the government from suit is expressly provided in ceased to be official the moment they exceeded their
Article XVI, Section 3. authority. Based on the Commission findings, there was
lack of justification by the government forces in the use
The principle is based on the very essence of
of firearms.
sovereignty, and on the practical ground that there can be
no legal right as against the authority that makes the law The inescapable conclusion is that the State cannot be
on which the right depends. held civilly liable for the deaths that followed the
incident.
This is not a suit against the State with its consent.
Instead, the liability should fall on the named defendants
the recommendation made by the Commission
in the lower court. In line with the ruling of this court
regarding indemnification of the heirs of the deceased
in Shauf vs. Court of Appeals, herein public officials,
and the victims of the incident by the government does
having been found to have acted beyond the scope of
not in any way mean that liability automatically
their authority, may be held liable for damages.
attaches to the State.
whatever may be the findings of the Commission, the
same shall only serve as the cause of action in the event

MNI NOTES |49

 Burgos vs Esperon Based on the finding that Jonas was a victim of enforced
disappearance, the Court of Appeals concluded that the
GR No. 178497, February 04, 2014
present case falls within the ambit of the Writ of Amparo.
Doctrine: The respondents have not appealed to the court, as
provided under Section 19 of the Rule on the Writ of
The Court emphasize that the Court’s role in a writ
Amparo. Hence, the petitioner filed an Urgent Ex Parte
of Amparo proceeding is merely to determine whether
Motion Ex Abundanti Cautela.
an enforced disappearance has taken place; to determine
who is responsible or accountable; and to define and Issue:
impose the appropriate remedies to address the
Whether or not the petitioner’s motion should be
disappearance.
granted.
Facts:
Jeffrey Cabintoy and Elsa Agasang have witnessed
Ruling:
on that fateful day of April 28, 2007 the forcible
abduction of Jonas Burgos by a group of about seven (7) No.
men and a woman from the extension portion of Hapag
After reviewing the newly discovered evidence
Kainan Restaurant located in Quezon City.
submitted by the petitioner and considering all the
The Commission on Human Rights (CHR) submitted to developments of the case, including the Court of
the Court its Investigation Report on the Enforced Appeal’s decision that confirmed the validity of the
Disappearance of Jonas Burgos. The CHR finds that the issuance of the Writ of Amparo in the present case, the
enforced disappearance of Jonas Burgos had transpired Court resolve to deny the petitioner’s Urgent Ex Parte
and that his constitutional rights to life, liberty and Motion Ex Abundanti Cautela.
security were violated by the Government have been
The Court note and conclude, based on the developments
fully determined. The CHR demonstrated in its
highlighted above, that the beneficial purpose of the Writ
investigations resulted in the criminal prosecution of Lt.
of Amparo has been served in the present case. As the
Baliaga. Regional Trial Court found probable cause for
Court held in Razon, Jr. v. Tagitis the writ merely
arbitrary detention against Lt. Baliaga and ordered his
embodies the Court’s directives to police agencies to
arrest in connection with Jonas’ disappearance.

MNI NOTES |50

 undertake specified courses of action to address the who carry the burden of disclosure; or those who carry,
enforced disappearance of an individual. but have failed to discharge, the burden of extraordinary
diligence in the investigation of the enforced
The Writ of Amparo serves both a preventive and
disappearance.
a curative role. It is curative as it facilitates the
subsequent punishment of perpetrators through the
investigation and remedial action that it directs. The
In the present case, while Jonas remains missing, the
focus is on procedural curative remedies rather than on
series of calculated directives issued by the Court
the tracking of a specific criminal or the resolution of
outlined above and the extraordinary diligence the CHR
administrative liabilities.
demonstrated in its investigations resulted in the criminal
The unique nature of Amparo proceedings has led us to prosecution of Lt. Baliaga. The Court take judicial notice
define terms or concepts specific to what the proceedings of the fact that the Regional Trial Court has already
seek to achieve. In Razon Jr., v. Tagitis, the Court found probable cause for arbitrary detention against Lt.
defined what the terms “responsibility” and Baliaga and has ordered his arrest in connection with
“accountability” signify in an Amparo case. Jonas’ disappearance.
The Court said: Responsibility refers to the extent the The Court emphasize that the Court’s role in a writ
actors have been established by substantial evidence to of Amparo proceeding is merely to determine whether
have participated in whatever way, by action or an enforced disappearance has taken place; to determine
omission, in an enforced disappearance, as a measure of who is responsible or accountable; and to define and
the remedies this Court shall craft, among them, the impose the appropriate remedies to address the
directive to file the appropriate criminal and civil cases disappearance.
against the responsible parties in the proper courts.
As shown above, the beneficial purpose of the Writ
Accountability, on the other hand, refers to the measure of Amparo has been served in the present case with the
of remedies that should be addressed to those who CA’s final determination of the persons responsible and
exhibited involvement in the enforced disappearance accountable for the enforced disappearance of Jonas and
without bringing the level of their complicity to the level the commencement of criminal action against Lt.
of responsibility defined above; or who are imputed with Baliaga. At this stage, criminal, investigation and
knowledge relating to the enforced disappearance and

MNI NOTES |51

 prosecution proceedings are already beyond the reach of As such, the proper filing fee was 472 Million
the Writ of Amparo proceeding now before us. Philippine pesos, which Petitioners had not paid.

MIJARES vs RANADA Issue:

Facts: 1. Whether or not the amount paid by the Petitioners is
the proper filing fee?
Invoking the Alien Tort Act, petitioners Mijares, et
al.*, all of whom suffered human rights violations 2. W/N US Judgment is enforceable in Philippine
during the Marcos era, obtained a Final Judgment in Jurisdiction
their favor against the Estate of the late Ferdinand
Ruling:
Marcos amounting to roughly 1.9 Billion U.S. Dollars
in compensatory and exemplary damages for Yes, but on a different basis—amount merely
tortuous violations of international law in the US corresponds to the same amount required for “other
District Court of Hawaii. This Final Judgment was actions not involving property”. The Regional Trial
affirmed by the US Court of Appeals. Court of Makati erred in concluding that the filing
fee should be computed on the basis of the total sum
Then after the Petitioners filed a Complaint with the
claimed or the stated value of the property in
Regional Trial Court of Makati for the enforcement of
litigation. The Petitioner’s Complaint was lodged
the Final Judgment, paying Php 410.00 as docket and
against the Estate of Marcos but it is clearly based on a
filing fees based on Rule 141, Section 7(b) where the
judgment, the Final Judgment of the US District Court.
value of the subject matter is incapable of pecuniary
However, the Petitioners erred in stating that the Final
estimation. The Estate of Marcos however, filed a MTD
Judgment is incapable of pecuniary estimation because it
alleging the non-payment of the correct filing fees. The
is so capable. On this point, Petitioners state that this
Regional Trial Court of Makati dismissed the
might lead to an instance wherein a first level court
Complaint stating that the subject matter was
(MTC, MeTC, etc.) would have jurisdiction to enforce a
capable of pecuniary estimation as it involved a
foreign judgment. Under Batasang Pambansa 129, such
judgment rendered by a foreign court ordering the
courts are not vested with such jurisdiction. Section 33
payment of a definite sum of money allowing for the
of Batasang Pambansa 129 refers to instances wherein
easy determination of the value of the foreign judgment.

MNI NOTES |52

 the cause of action or subject matter pertains to an
assertion of rights over property or a sum of money. But
Baroy v Philippines (Communication No 1045/2002
here, the subject matter is the foreign judgment itself.
31 October 2003; CCPR/C/79/D/1045/2002)
Section 16 of Batasang Pambansa 129 reveals that the
complaint for enforcement of judgment even if capable Alfredo Baroy, a Philippine national allegedly born on
of pecuniary estimation would fall under the jurisdiction 19 January 1984 and thus aged 17 at the time of
of the Regional Trial Courts. Thus, the Complaint to submission of the communication.
enforce the US District Court judgment is one capable of
he was detained on death row at New Bilibid Prisons,
pecuniary estimations but at the same time, it is also an
Muntinlupa City
action based on judgment against an estate, thus placing
it beyond the ambit of Section 7(a) of Rule 141. What FACTS:
governs the proper computation of the filing fees over
On 2 March 1998, a woman was raped three times. The
Complaints for the enforcement of foreign judgments
Baroy (author) and an (adult) coaccused were
is Section7(b)(3), involving “other actions not
thereafter charged with three counts of rape with use of
involving property.”
a deadly weapon
Baroy was allegedly 14 yrs old at that time.
2. US District Court decision falls under
At trial, the defense introduced the issue of minority
GAPOIL, which is incorporated in the law of the land.
through the author, who claimed to have been born in
The right to seek recognition and enforcement of foreign
1982. The trial court instructed the appropriate
judgments, as well as a right to defend against such
government agencies to submit evidence on his true age.
enforcement is recognized in the Philippine legal system.
Preclusion of an action for enforcement of a foreign There were 3 documents presented, each containing
judgment in the Philippines merely due to incorrect different year of birth.
filing fees is contrary to the general principles of
The trial court considered, in the light of the author's
international law; hence, it cannot be used as a
physical appearance, that the author's true date of birth
ground to dismiss the case.
was 19 January 1980, thus making him over 18 years
of age at the time the offence was committed.

MNI NOTES |53

 Baroy and his co-accused were convicted of three as a minor. No preliminary determination was made as
counts of rape w/ a deadly weapon and sentenced to to his minority, with the trial court simply placing the
death by lethal injection. burden of proof on the defence.
As to the issue of minority, the Court considered that the he requested the Committee to declare
record showed that the author had been coached by his
• his three death sentences, imposed upon a minor
mother to lie about it, and thus, having been "obviously
at time of commission of the offences, to be
fabricated", minority had not been made out.
contrary to article 6, paragraph 5,
The author subsequently filed a partial motion for • his detention on death row, as a minor, without
reconsideration of the 9 May 2002 judgment, reiterating regard to his legal status as such, to be contrary
his claim of minority as a privileged mitigating to article 10, paragraph 3,
circumstance. The motion was based on a purported • the failure to consider his legal status as a minor
certificate of live birth, certified as a true copy by the during the trial to be contrary to article 14,
Office of the Civil Registrar General, showing that the paragraph 4, and
author was born on 19 January 1984 (and making him 14 • the re-imposition of capital punishment and the
years of age at the time of the commission of the declared policy of the President to carry it out to
offence). be contrary to article 6, paragraph 2, in
- - --- - conjunction with paragraph 6.

BAROY’S COMPLAINTS He petitioned the Committee to request the State party to

take all appropriate action on the death sentences
claims a violation of article 10, paragraph 3, as after imposed upon him, consistent with its own laws on
his conviction he was detained on death row with other juvenile offenders and its obligations under the
convicts sentenced to death, regardless of his age. He Covenant.
was not accorded special treatment as a minor and was
detained with adult criminals. State party argues that, as the author's appeal was
pending before the Supreme Court at the time of
further claims a violation of article 14, in particular submission of the communication, his complaints were
paragraph 4. He was not accorded a separate procedure "by and large speculative and premature" and the
that would protect his rights considering his legal status

MNI NOTES |54

 communication was inadmissible for failure to exhaust the Committee considers that the issues raised by the
domestic remedies. author concerning the alleged violations of article 6 of
the Covenant through imposition of the death penalty in
rejected the claim of minority, finding it "obviously
his case have become moot, in relation to article 1 of
fabricated" as a result of his mother's coaching. The State
the Optional Protocol. Accordingly, while potentially
party points out that his claim of minority as a privileged
relevant to the Committee's assessment of the remaining
mitigating circumstance, the claim continues to be
claims, these particular issues need not be further
pending and should be dismissed for non-exhaustion of
addressed by the Committee.
domestic remedies.
ISSUE:
the State party argues, in addition to its earlier
arguments, that the author cannot claim to be a "victim", the Committee observes that sentencing a person to
as required by the Optional Protocol, as there has been death and placing him or her on death row in
no concrete application of law to his detriment. circumstances where his or her minority has not been
finally determined raises serious issues under articles 10
Indeed, as the 9 May 2002 decision of the Supreme Court
and 14, as well as potentially under article 7, of the
reduced the imposed penalty to reclusion perpetua, the
Covenant.
death penalty will not be imposed regardless of the
author's age at the time of the offence. RULING:
State party argues that the alleged violations are also , the Committee considers that the questions of the
premised on the author being a minor. The State party authors' age and the means by which it was determined
argues that the author's minority has not yet been by the courts are, by the author's own action, currently
satisfactorily proven, before a judicial forum with authority to resolve
definitively these particular claims. It follows that issues
arising under articles 10 and 14 and, potentially, article
Before considering any claim contained in a 7 from the author's age and the manner in which the
communication, the Human Rights Committee must, in courts sought to determine this question are
accordance with rule 87 of its rules of procedure, inadmissible, for failure to exhaust domestic
decide whether or not it is admissible under the remedies.
Optional Protocol to the Covenant.
The Committee therefore decides:

MNI NOTES |55

 (a) That the communication is inadmissible under When the author realized that Mr. C. intended to drop
articles 1 and 5, paragraph 2(b), of the Optional Protocol; off his friend first, she told him that she would rather take
a taxi because she was in a hurry to get home. Mr. C.,
(b) That this decision shall be communicated to the
however, did not allow her to take a taxi and sped away
author and to the State party
within 24 hours of being raped, the author underwent
a medical and legal examination at the Davao City
Karen Vertido Case Communication No. 18/2008, UN Medical Centre.the medical certificate, mentions the
Doc. CEDAW/C/46/D/18/2008 (2010) “alleged rape”

Karen Tayag Vertido, a Filipino national who claims to Within 48 hours of being raped, the author reported the
be a victim of discrimination against women within the incident to the police.and filed a case against the accused.
meaning of article 1 of the Convention in relation to
case was initially dismissed for lack of probable cause
general recommendation No. 19 of the Committee on
by a panel of public prosecutors, which conducted a
the Elimination of Discrimination against Women.
preliminary investigation, she filed an appeal at the Sec
also claims that her rights under articles 2 (c), (d), (f) of DOJ, which reversed the dismissal.
and 5 (a) of the Convention on the Elimination of All
case remained at the trial court level from 1997 to
Forms of Discrimination against Women have been
2005.The reasons for the prolonged trial included the fact
violated by the State party.
that the trial court judge was changed several times and
FACTS the accused filed several motions before the appellate
courts. Three judges recused themselves from the case.
Karen Vertido (author) served as Executive Director of
The case was referred to Judge Virginia Hofileña-Europa
the Davao City Chamber of Commerce and Industry, at
in September 2002
that time a former 60-year-old President of the
Chamber, raped her. The rape took place on 29 March On 26 April 2005, the Regional Court of Davao City,
1996. presided by Judge Virginia Hofileña-Europa, issued a
verdict acquitting the accused.
The accused offered to take the author home, together
with one of his friends, after a meeting of the Chamber -----

MNI NOTES |56

 In her complaint, she argued that she suffered ------
“revictimization” by the State Party after she was
author adds that the Supreme Court has not rendered a
raped.
decision that specifically recognizes the legal standing of
claims that by acquitting the perpetrator, the State party a rape victim or any other offended party in a criminal
violated her right to non-discrimination and failed in case to file the special civil action of certiorari to reverse
its legal obligation to respect, protect, promote and or nullify the acquittal of an accused after a trial on the
fulfil that right merits of the case based on the evidence presented. In
fact, she explains that in the case People v. Dela Torre,
claims that the State party failed in its obligation to
the Supreme Court held that “the prosecution cannot
ensure that women are protected against discrimination
appeal a decision in a criminal case whether to reverse
by public authorities, including the judiciary. She
an acquittal or to increase the penalty imposed in a
submits that this shows the State party’s failure to
conviction” because it would violate the right of the
comply with its obligation to address gender-based
accused against double jeopardy. It further stated, in an
stereotypes that affect women, in particular those
obiter dictum, that “the only way to nullify an acquittal
working in the legal system and in legal institutions.
or to increase the penalty is through a proper petition for
- - - - -- certiorari to show grave abuse of discretion”, but
clarified that “if the petition, regardless of its
the author submits that the two cases referred to by the
nomenclature, merely calls for an ordinary review of the
State party to show that she could have availed herself of
findings of the court a quo, the constitutional right
the remedy of certiorari do not apply to her situation.
against double jeopardy would be violated.
Those cases involved interlocutory orders, specifically
an order denying a motion for inhibition and an order -------
granting bail, not a final judgement of acquittal after a
ISSUE:
trial on the merits duly promulgated by the trial court, as
in the author’s case. Therefore, none of those cases can Committee considered that the crux of the author’s
be successfully invoked to support the legal standing of complaints related to the alleged gender-based myths
the victim before the Supreme Court in an action for and stereotypes about rape and rape victims,
certiorari involving a judgement of acquittal.
The Committee therefore found that the remedy of
- - - - - -- certiorari was not available to the author.

MNI NOTES |57

 RULING: sensitivity applied in the judicial handling of the
author’s case.
The Committee notes the undisputed fact that the case
remained at the trial court level from 1997 to 2005. It the Committee finds that to expect the author to have
considers that for a remedy to be effective, adjudication resisted in the situation at stake reinforces in a particular
of a case involving rape and sexual offenses claims manner the myth that women must physically resist the
should be dealt with in a fair, impartial, timely and sexual assault.
expeditious manner.
In this regard, the Committee stresses that there should
the Convention places obligations on all State organs be no assumption in law or in practice that a woman
and that States parties can be responsible for judicial gives her consent because she has not physically resisted
decisions which violate the provisions of the the unwanted sexual conduct, regardless of whether the
Convention. It notes that by articles 2 (f) and 5 (a), the perpetrator threatened to use or used physical violence.
State party is obligated to take appropriate measures to
Acting under article 7, paragraph 3, of the Optional
modify or abolish not only existing laws and regulations,
Protocol to the Convention on the Elimination of All
but also customs and practices that constitute
Forms of Discrimination against Women, and in the
discrimination against women.
light of all the above considerations, the Committee is of
the Committee stresses that stereotyping affects the view that the State party has failed to fulfil its
women’s right to a fair and just trial and that the judiciary obligations and has thereby violated the rights of the
must take caution not to create inflexible standards of author under article 2 (c) and (f), and article 5 (a) read
what women or girls should be or what they should have in conjunction with article 1 of the Convention and
done when confronted with a situation of rape based general recommendation No. 19 of the Committee, and
merely on preconceived notions of what defines a rape makes the following recommendations to the State
victim or a victim of gender-based violence, in general. party:
In the particular case, the compliance of the State (a) Concerning the author of the
party’s due diligence obligation to banish gender communication
stereotypes on the grounds of articles 2 (f) and 5 (a)
• Provide appropriate
needs to be assessed in the light of the level of gender
compensation commensurate with the gravity of the
violations of her rights

MNI NOTES |58

 (b) General RPB v. the Philippines (Communication No. 34/2011)
• Take effective measures to ensure Facts
that court proceedings involving rape allegations are
The complainant, RPB, claimed to have been raped in
pursued without undue delay
June 2006 by her neighbour, J (accused). The
• Ensure that all legal procedures in complainant was 17 years old at the time and was mute
cases involving crimes of rape and other sexual offenses and hearing impaired. The complainant reported the
are impartial and fair, and not affected by prejudices or incident to the police; her sister interpreted for her
stereotypical gender notions.. To achieve this, a wide using sign language. The affidavit drawn up was in
range of measures are needed, targeted at the legal Filipino. As the education system for the deaf was almost
system, to improve the judicial handling of rape cases, as entirely in English, the complainant could not
well as training and education to change discriminatory understand the affidavit, nor was she provided with
attitudes towards women. Concrete measures include: an interpreter.
(i) Review of the definition of rape in The accused was charged with rape in July 2006. It then
the legislation so as to place the lack of consent at its took almost five years for the case to be heard and
centre; finalised, despite the fact that the only witnesses were the
complainant, the accused and the complainant’s mother.
(ii) Remove any requirement in the
Reasons for delays included the following: the failure of
legislation that sexual assault be committed by force or
the court to provide an interpreter for the complainant,
violence, and any requirement of proof of penetration,
leaving the complainant to arrange one through the
and minimize secondary victimization of the
Philippine Deaf Resource Centre, who were not always
complainant/survivor in proceedings by enacting a
able to attend; the failure of the court to hear the case
definition of sexual assault that either:
until after the other cases scheduled for the day, meaning
the case had to be adjourned when other cases ran over;
and changes in prosecutors. In 2011 the court acquitted
the accused.
In acquitting the accused, the court found that there
was insufficient evidence that the complainant did

MNI NOTES |59

 not consent. The court noted the lack of evidence that basis of sex which has the effect or purpose of impairing
she had physically resisted the assault: she had not cried or nullifying the recognition, enjoyment or exercise by
out, nor attempted to escape by using force, nor were her women…on a basis of equality of men and women, of
clothes torn in any way. The court noted that an ordinary human rights and fundamental freedoms”.
Filipina female rape victim would “summon every ounce
• Article 2(c) requires states to adopt appropriate
of her strength and courage to thwart any attempt to
legislative and other measures, including sanctions
besmirch her honour and blemish her purity”. The court
where appropriate, prohibiting all discrimination against
found her demeanour was inconsistent with that of an
women.
ordinary Filipina and the “reasonable standard of human
conduct” because she had not sought to escape or resist. • Article 2(d) requires the state to refrain from engaging in
The court then concluded that this failure on her part cast any act or practice of discrimination against women and
doubt on her credibility and rendered her claim of lack to ensure that public authorities and institutions shall act
of voluntariness and consent difficult to believe. in conformity with this obligation.
The complainant noted that no counselling or • Article 2(f) requires the state to take all appropriate
rehabilitation had been provided to her despite her ordeal measures, including legislation, to modify or abolish
and despite the emotional and psychological damage she existing laws, regulations, customs and practices which
had suffered. constitute discrimination against women.
The complainant, in her complaint to the Committee, The complainant also claimed that the lack of an
argued that the way in which the case was handled, and interpreter, either at the investigation stage or at the trial,
the gender-based myths and stereotypes about rape and violated her rights under article 16 the Convention on the
rape victims, denied her justice. In particular, the use of Rights of Persons with Disabilities (CRPD), which
myths and stereotypes meant that her particular situation, requires States to protect persons with disabilities from
that of being a minor and having a disability, was not abuse, and to provide counselling and rehabilitation for
taken into account. As such, it amounted to a violation of victims of abuse.
the State’s obligation to end discrimination in the legal
RULING:
process under articles 1 and 2(c), (d) and (f) of CEDAW:
The Committee found that articles 1 and 2(c), (d) and (f) had
• Article 1 defines discrimination against women to mean
been breached by the Philippines.
“any distinction, exclusion or restriction made on the

MNI NOTES |60

In regards to interpreters, the Committee found that the These gender stereotypes and misconceptions included the lack
provision of a sign language interpreter was essential to of resistance and consent on behalf of the rape victim and the
ensure the author’s full and equal participation in necessary use of force and intimidation by the accused.
proceedings and to guarantee her the enjoyment of effective
The Committee found that the failure to combat such myths
protection against discrimination under articles 2(c) and (d) of
and stereotypes, the continuation of a presumption that there
CEDAW. The Committee drew on its general recommendations
is consent simply because there is no physical resistance or
No 18 and 19 (Committee 10th and 11th sessions 1992) in
use of force, and the failure to integrate “lack of consent” into
coming to this conclusion:
the definition of rape amounted to a breach of article 2(f).
• General recommendation No 18 states that women with
The continuing use of stereotypes also meant the particular
a disability are to be considered a vulnerable group and
circumstances – that of the girl’s disability and age – were not
that it is “crucial to ensure that women with disabilities
considered when assessing her evidence. The Committee noted
enjoy effective protection against sex and gender-based
that the state’s obligations under article 2(f) to banish gender
discrimination by States parties and have access to
stereotypes must be assessed in light of the level of gender, age
effective remedies.”
and disability sensitivity applied in the judicial handling of the
• General recommendation No 19 notes that States should case.
“ensure that laws against family violence and abuse,
rape, sexual assault and other gender-based violence give
adequate protection to all women, and respect their Lenido Lumanog and Augusto Santos v The Philippines
integrity and dignity” and provide “effective complaints (U.N. Doc. CCPR/C/92/D/1466/2006 Communication No.
procedures and remedies, including compensation”. 1466/2006. 20 March 2008)
The Committee found that the court’s attitude towards the FACTS:
complainant, and towards women and rape in general,
The authors and three other individuals were sentenced to death
revealed the existence of strong gender stereotyping,
for the murder of former Colonel Rolando Abadilla, occurred on
resulting in sex and gender discrimination and disregard for the
13 June 1996, by judgment of the Regional Trial Court (RTC)
“individual circumstances of the case, such as the author’s
of Quezon City,
disability and age”.
With respect to Mr. Lumanog only, it is submitted that he was
denied interlocutory relief while the case was pending before the

MNI NOTES |61

Supreme Court. The Court denied his "Motion for New Trial and RULING:
Related Relief" by resolution of 17 September 2002, even
In relation to the alleged violation on the ground that in similar
though its jurisprudence in death penalty cases allowed a new
cases the Supreme Court refused to refer the case to the Court of
trial
Appeals and instead decided to review the case itself, the
authors claim to be victims of a violation of articles 6 Committee considers that it has no competence to compare the
paragraph 1; 9, paragraph 1; and 14, paragraphs 1, 3(c) and present case with other cases dealt with by the Supreme Court.
5; and 26 of the Covenant. Accordingly, this part of the communication is inadmissible
under article 2 of the Optional Protocol.
claim that the decision of the Supreme Court not to review their
case and transfer it to the Court of Appeals violates article 14, The Committee therefore decides that the communication is
paragraph 5 of the Covenant insofar as it violates their right to admissible only insofar as it raises issues under article 6,
have their conviction and sentence reviewed by a higher paragraph 1, and article 14, paragraph 3(c), of the Covenant.
tribunal.
this claim has been rendered moot after the abolition by the
State party challenges the admissibility of the communication Philippine Congress of the death penalty in July 2006.
for non-exhaustion of domestic remedies. It states that the
The Committee considers that the establishment of an additional
transfer of the authors' case to the Court of Appeals was
layer of jurisdiction to review death penalty cases is a positive
made pursuant to an amendment to the Revised Rules of
step in the interest of the accused person.
Court on Criminal Procedure (Sections 3 and 10 of Rule 122),
providing that when the death penalty is imposed, the case must However, State parties have an obligation to organize their
be considered by the Court of Appeals for Review. system of administration of justice in such a manner as to ensure
an effective and expeditious disposal of the cases. In the
The new rules provide that in cases involving the death penalty
Committee's view, the State party has failed to take into
the Court of Appeals must be seized. Only thereafter, if
consideration the consequences, in terms of undue delay of the
circumstances so warrant, the case may be sent to the Supreme
proceedings, that the change in its criminal procedure caused in
Court for final disposition.
this case, where the review of a criminal conviction was pending
ISSUE: for many years before the Supreme Court and was likely to be
heard soon after the change in the procedural rules.
w/n the communication is admissible under the Optional
Protocol to the Covenant.

MNI NOTES |62

there is no justification for the delay in the disposal of the
appeal, more than eight years having passed without the authors'
conviction and sentence been reviewed by a higher tribunal.
Accordingly, the Committee finds that the authors' rights under
article 14, paragraph 3 (c) of the Covenant, have been violated.

MNI NOTES |63

PREROGATIVE WRITS • Was issued as an exercise of the SC's power to
promulgate rules concerning the protection and
enforcement of constitutional rights. It aims to address
WRIT OF HABEAS CORPUS concerns such as, among others, extrajudicial killings
and enforced disappearances.
- extend to all cases of illegal confinement or detention by which
any person is deprived of his liberty, or by which the rightful - - - - - - - - based on Manalo Case - - - - - - - - -
custody of any person is withheld from the person entitled • adoption of the Amparo Rule surfaced as a recurring
thereto. (Rule 102, ROC) proposition in the recommendations that resulted from a
• The writ was devised and exists as a speedy and effectual two-day National Consultative Summit on Extrajudicial
remedy to relieve persons from unlawful restraint, and as Killings and Enforced Disappearances sponsored by the
the best and only sufficient defense of personal freedom. Court on July 16-17, 2007.
It is extraordinary and summary in nature, consistently • "envisioned to provide a broad and fact-based
with the law's zealous regard for personal liberty. perspective on the issue of extrajudicial killings and
• PRIMARY PURPOSE: to inquire into all manner of enforced disappearances,"
involuntary restraint as distinguished from voluntary, • an exercise for the first time of the Court's expanded
and to relieve a person therefrom if such restraint is power to promulgate rules to protect our people's
illegal. Any restraint which will preclude freedom of constitutional rights, which made its maiden appearance
action is sufficient. in the 1987 Constitution in response to the Filipino
experience of the martial law regime.
• intended to address the intractable problem of
WRIT OF AMPARO
"extralegal killings" and "enforced disappearances," its
- a remedy available to any person whose right to life, liberty coverage, in its present form, is confined to these two
and security is violated or threatened with violation by an instances or to threats thereof.
unlawful act or omission of a public official or employee, or of
a private individual or entity. (A.M No. 07-9-12 SC) 1) "Extralegal killings" are "killings committed
without due process of law, i.e., without legal
safeguards or judicial proceedings."

MNI NOTES |64

 2) "enforced disappearances" are "attended by the 1) Amparo libertad for the protection of personal
following characteristics: freedom, equivalent to the habeas corpus writ;
• an arrest, detention or abduction of a 2) Amparo contra leyes for the judicial review of
person by a government official or the constitutionality of statutes;
organized groups or private individuals
3) Amparo casacion for the judicial review of the
• acting with the direct or indirect constitutionality and legality of a judicial
acquiescence of the government; decision;
• the refusal of the State to disclose the fate 4) Amparo administrativo for the judicial review
or whereabouts of the person concerned of administrative actions; and
or
5) Amparo agrario for the protection of peasants'
• a refusal to acknowledge the deprivation rights derived from the agrarian reform process.
of liberty which places such persons
• In the Philippines, while the 1987 Constitution does
outside the protection of law."
not explicitly provide for the writ of Amparo, several of
• writ of Amparo originated in Mexico. "Amparo" the above Amparo protections are guaranteed by our
literally means "protection" in Spanish. charter.
• Amparo thus combines the principles of judicial review 1) The second paragraph of Article VIII, Section
derived from the U.S. with the limitations on judicial 1 of the 1987 Constitution, the Grave Abuse
power characteristic of the civil law tradition which Clause, provides for the judicial power "to
prevails in Mexico. It enables courts to enforce the determine whether or not there has been a grave
constitution by protecting individual rights in particular abuse of discretion amounting to lack or excess
cases, but prevents them from using this power to make of jurisdiction on the part of any branch or
law for the entire nation. instrumentality of the Government."
• What began as a protection against acts or omissions of 2) The Clause accords a similar general protection
public authorities in violation of constitutional rights to human rights extended by the Amparo contra
later evolved for several purposes: leyes, Amparo casacion, and Amparo
administrativo. Amparo libertad is

MNI NOTES |65

 comparable to the remedy of habeas 2) it is curative in that it facilitates the subsequent
corpus found in several provisions of the 1987 punishment of perpetrators as it will inevitably
Constitution. yield leads to subsequent investigation and
action.
• the swiftness required to resolve a petition for a writ
of Amparo through summary proceedings and the • In the long run, the goal of both the preventive and
availability of appropriate interim and permanent reliefs curative roles is to deter the further commission of
under the Amparo Rule, this hybrid writ of the common extralegal killings and enforced disappearances.
law and civil law traditions - borne out of the Latin
American and Philippine experience of human rights
abuses - offers a better remedy to extralegal killings and WRIT OF HABEAS DATA
enforced disappearances and threats thereof.
- a remedy available to any person whose right to privacy in life,
• The remedy provides rapid judicial relief as it partakes liberty or security is violated or threatened by an unlawful act or
of a summary proceeding that requires only substantial omission of a public official or employee, or of a private
evidence to make the appropriate reliefs available to the individual or entity engaged in the gathering, collecting or
petitioner; storing of data or information, regarding the person, family,
home and correspondence of the aggrieved party. (AM No. 08-
• it is not an action to determine criminal guilt requiring
1-16 SC)
proof beyond reasonable doubt, or liability for damages
requiring preponderance of evidence, or administrative • An independent and summary remedy designed to
responsibility requiring substantial evidence that will protect the image, privacy, honor, information, and
require full and exhaustive proceedings. freedom of information of any individual, and to provide
a forum to enforce one's right to the truth and to
• serves both preventive and curative roles in
informational privacy.
addressing the problem of extralegal killings and
enforced disappearances. • REQUISITES: (Vivares vs. STC)
1) It is preventive in that it breaks the expectation o The existence of a person's right to informational
of impunity in the commission of these offenses; privacy.

MNI NOTES |66

 o A showing, at least by substantial evidence, of an o The first and perhaps most famous of these is the
actual or threatened violation of the right to petition for a writ of habeas corpus, roughly
privacy in life, liberty or security of the victim are translated, “You should have the body.”
indispensable before the privilege of the writ may o The writ of habeas corpus is a guarantee
be extended. against deprivation of liberty of a person. It
originated in the Middle Ages in England,
recognized in the several versions of the Magna
WRIT OF KALIKASAN Carta, so that a person held in custody is brought
before a judge or court to determine whether the
- remedy available to a natural or juridical person, entity
detention is lawful or otherwise.
authorized by law, people's organization, or any public interest
• In the Latin American countries, particularly Mexico
group accredited by or registered with any government agency,
and Argentina, they crafted the writ of amparo which
on behalf of persons whose constitutional right to a balanced and
protects a whole gamut of constitutional rights.
healthful ecology is violated, or threatened with violation by an
• There are other mechanisms to protect human rights, but
unlawful act or omission of a public official or employee, or
the most recent of these legal mechanisms is the writ
private individual or entity, involving environmental damage of
of habeas data.
such magnitude as to prejudice the life, health or property of
o roots of the writ of habeas data can be traced to
inhabitants in two or more cities or provinces. (Rules of
the Council of Europe’s 108th Convention on
Procedure for Environmental Cases, AM No. 09-6-8 SC)
Data Protection of 1981.
o The writ of habeas data may be said to be the
youngest legal mechanism to appear in the legal
The Writ of Habeas Data ( Speech of Chief Justice
landscape.
Reynato Puno, 2017) o A comparative law scholar has described habeas
• Delivered at the UNESCO Forum data as “a procedure designed to safeguard
• In the history of law, filing an individual petition before individual freedom from abuse in the information
courts to invoke constitutional rights has long been age.”
granted a substantive recognition. o The scope and concept of this writ vary from
country to country; but in general, it is designed
to protect by means of an individual complaint

MNI NOTES |67

 presented to a constitutional court the image, petitioner, contained in records or
privacy, honor, information self-determination databanks of government agencies or of
and freedom of information of a person.
o agencies of a public character;
• European Data Protection Convention of 1981 was ▪ (2) for the correction of data, when the
convened to develop safeguards to secure the privacy of petitioner does not prefer to do so through
the individual by way of regulating the processing of a confidential process, either judicial or
personal information or data. administrative.
• In countries like Germany, the use of the writ of habeas • Colombia incorporated the habeas data right in its 1991
data was justified by invoking the people’s right to Constitution, recognizes the right to individual privacy
individual self-determination. and recognizes that the citizens shall have the right to
• In Latin American countries, however, it found use as know, access, update and rectify any information
an aid in solving their perennial problem of protecting gathered about them in databases, both public and
the individual against human rights abuses. private.
• The first Latin American country to adopt the writ • The Argentine version, though not called habeas data,
of habeas data is the Federal Republic of Brazil. is more comprehensive than other Latin American
o right to initiate a habeas data complaint on the models, includes the judicial remedy to enforce ones
part of a citizen. It is expressed as a full right to access, rectify, update, or destroy the data.
constitutional right under Article 5, Title II of the o This model also guarantees the confidentiality of
1988 Brazilian Constitution, which I quote: personal or private information and makes
o Habeas Data shall be granted: specific the protection of journalistic privilege, of
▪ (1) to ensure the knowledge of the lofty democratic role of the press.
information related to the person of the

MNI NOTES |68

 • The Writ of habeas data ought to be constantly police and military records otherwise closed to them. In
reviewed, especially in this age of Information essence, the decision established a right to truth.
Technology, when privacy can easily be pierced by the o right to truth is fundamental to citizens of
push of a button. But these studies undeniably show that countries in transition to democracy, especially
the writ of habeas data has become an excellent Human those burdened by legacy of massive human
Rights tool mostly in the countries that are recovering rights violations. This right entitles the families
from military dictatorships. of disappeared persons to know the totality of
• In Paraguay, for instance, an action for a writ of habeas truth surrounding the fate of their relatives.
data was filed to view police records bringing to light o Indeed, truth is the bedrock of all legal systems,
several atrocities that had been committed at that site. whether the system follows the common law
o Aside from giving individuals the right to find tradition or the civil law tradition. Justice that is
out what information is being kept about them, not rooted in truth is injustice in disguise. That
o the writ of habeas data seeks to protect the right kind of justice will not stand the test of time, for
to find out what use and for what purpose such it is not anchored on reality but on mere images.
data are being collected. • The Philippine version of the writ of amparo is
o The petitioner is also given the opportunity to designed to protect the most basic right of a human
question the data and demand their updating, being, which is one’s right to life, liberty and security
rectification, or destruction. guaranteed by all our Constitutions starting with
• In Argentina, the Argentine Supreme Court ruled that the 1898 Declaration of Philippine Independence and
the writ of habeas data was available to the families of the Universal Declaration of Human Rights of 1948.
the deceased in a case involving extralegal killings and • We are studying further how to strengthen the role of the
enforced disappearances. It gave the victims access to judiciary as the last bulwark of defense against violation

MNI NOTES |69

 of the constitutional rights of our people especially their
right to life and liberty by the use habeas data. It is our
fervent hope that with the help of the writ of habeas
corpus, the writ of amparo and the writ of habeas data,
we can finally bring to a close the problem of extralegal
killings and enforced disappearances in our country,
spectral remains of the Martial Law regime.

MNI NOTES |70

MNI NOTES |71
MNI NOTES |72
Gumabon vs. Director of the Bureau of Prisons conscience, allow Gumabon et al to suffer life imprisonment,
while others can suffer only prision mayor?
37 SCRA 420, No. L-30026
ISSUES:
January 30, 1971
1) Whether or not Gumabon et al is entitled to the effects of the
FACTS:
Hernandez Doctrine.
Mario Gumabon et al were charged with rebellion punished
2) Whether or not petitioners be given a retroactive effect with
under Art. 134 of the Revised Penal Code. Their offense was
habeas corpus as appropriate remedy.
complexed with multiple murder, robbery, arson, and
kidnapping. They were all sentenced to reclusion perpetua. HELD:
Their sentence had become final and executory when 1) Yes. The SC ruled in favor of Gumabon et al. The
the Hernandez Doctrine was promulgated by the Supreme continued incarceration after the twelve-year period when such
Court. The Hernandez Doctrine simply states that murder is the maximum length of imprisonment in accordance with the
cannot be complexed with rebellion because murder, a controlling doctrine, when others similarly convicted have been
regular crime, is necessarily absorbed by rebellion. Hence, freed, is fraught with implications at war with equal protection.
without such complexion, the penalty must be lower than That is not to give it life. On the contrary, it would render it
reclusion perpetua. nugatory. Otherwise, what would happen is that for an identical
offense, the only distinction lying in the finality of the conviction
Gumabon asserted that a non-application of the Hernandez
of one being before the Hernandez ruling and the other after, a
Doctrine will lead to a deprivation of a constitutional right,
person duly sentenced for the same crime would be made to
namely, the denial of equal protection. Gumabon et al,
suffer different penalties. If Gumabon et al would continue to
nonetheless, were convicted by Court of First Instance but they
endure imprisonment, then this would be repugnant to equal
were convicted for the very same rebellion for which Hernandez
protection, people similarly situated were not similarly dealt
and others were convicted
with.
– (The law under which they [Gumabon et al] were convicted is
What is required under this constitutional guarantee is the
the very same law under which the latter [Hernandez et al] were
uniform operation of legal norms so that all persons under
convicted.) It had not and has not been changed. For the same
similar circumstances would be accorded the same treatment
crime, committed under the same law, how can the SC, in
both in the privileges conferred and the liabilities imposed. As

MNI NOTES |73

was noted in a recent decision: Favoritism and undue WHEREFORE, the petition for habeas corpus is granted, and it
preference cannot be allowed. For the principle is that equal is ordered that petitioners be forthwith set at liberty.
protection and security shall be given to every person under
circumstances, which if not identical are analogous. If law be
looked upon in terms of burden or charges, those that fall within Villavicencio vs. Lukban
a class should be treated in the same fashion, whatever
G.R. No. L-14639
restrictions cast on some in the group equally binding on the rest.
March 25, 1919
Both the civil code and the revised penal code allow
retroactive application. As stated in Article 2 of the Revised FACTS:
Penal Code, “Penal laws shall have a retroactive effect in so
The Lukban as mayor of Manila ordered the segregated district
far as they favor the person guilty of a felony, who is not a
for women of ill repute be closed, for the purpose of
habitual criminal.” Thus, one effect of repeal of penal law is
exterminating vices in the city. The women were kept confined
that if the repeal makes the penalty lighter in the new law,
to their houses by the police while the city authorities made
the new law shall be applied, except when the offender is a
arrangements with the bureau of labor for sending the women to
habitual delinquent.
Davao as laborers. Later at midnight of October 25, the police,
2) Yes, In Director v. Director of Prisons, it was explicitly Anton Hohmann and the Mayor descended upon the houses and
announced by the Court “that the only means of giving placed them aboard the steamers. The women were given no
retroactive effect to a penal provision favourable to the opportunity to collect their belongings and thought that they
accused… is the writ of habeas corpus.” While the above would be brought to the police station for an investigation. They
decision speaks of a trial judge losing jurisdiction over the case, have not been asked if they wish to depart from the region and
insofar as the remedy of habeas corpus is concerned, the neither been asked of their consent for the deportation.
emphatic affirmation that it is the only means of benefiting the
Upon their arrival in Davao, the provincial governor of Davao
accused by the retroactive character of a favourable decision
had no previous notification that the women were prostitutes
holds true. Petitioners clearly have thus successfully sustained
who had been expelled in the city of Manila. Then the relatives
the burden of justifying their release.
of the deportees presented an application for habeas corpus to
DISPOSITIVE PORTION: the SC. The application alleged that the women were illegally
deported by the order of Lukban. Lukban and Hohman admitted
certain facts but prayed that the writ should not be granted

MNI NOTES |74

because the petitioners were not proper parties to the case that it to Davao without even being given the opportunity to collect
should have begun in Davao because the women are not in their their belongings or, worse, without even consenting to being
custody now. transported to Mindanao. For this, Lukban et. al must be severely
punished.
According to the fiscal attachment, the women were destined to
be laborers at good salaries on the hacienda of Ynigo and As to criminal responsibility, it is true that the Penal Code in
governor sales. Fiscal also admitted that the deportation was force in these Islands provides:
without consent of the women.
Any public officer not thereunto authorized by law or by
ISSUES: regulations of a general character in force in the Philippines
who shall banish any person to a place more than two hundred
1) Whether or not Mayor Lukban has the authority in expelling
kilometers distant from his domicile, except it be by virtue of the
the prostitutes in his city (Manila) without due process of law.
judgment of a court, shall be punished by a fine of not less than
2) Whether or not, the writ [of habeas corpus] should be granted. three hundred and twenty-five and not more than three thousand
two hundred and fifty pesetas.
HELD:
Any public officer not thereunto expressly authorized by law or
1) NO. Law defines power. No official, no matter how high, is
by regulation of a general character in force in the Philippines
above the law. Lukban committed a grave abuse of discretion
who shall compel any person to change his domicile or
by deporting the prostitutes to a new domicile against their
residence shall suffer the penalty of destierro and a fine of not
will. There is no law expressly authorizing his action. On the
less than six hundred and twenty-five and not more than six
contrary, there is a law punishing public officials, not
thousand two hundred and fifty pesetas. (Art. 211.)
expressly authorized by law or regulation, who compels any
person to change his residence Furthermore, the prostitutes Court reasoned further that if the chief executive of any
are still, as citizens of the Philippines, entitled to the same municipality in the Philippines could forcibly and illegally take
rights, as stipulated in the Bill of Rights, as every other a private citizen and place him beyond the boundaries of the
citizen. Their choice of profession should not be a cause for municipality, and then, when called upon to defend his official
discrimination. It may make some, like Lukban, quite action, could calmly fold his hands and claim that the person was
uncomfortable but it does not authorize anyone to compel said under no restraint and that he, the official, had no jurisdiction
prostitutes to isolate themselves from the rest of the human race. over this other municipality, then the more the writ of habeas
These women have been deprived of their liberty by being exiled corpus should be enforced.

MNI NOTES |75

Even if the party to whom the writ is addressed has illegally In resume — as before stated, no further action on the writ of
parted with the custody of a person before the application habeas corpus is necessary. The respondents Hohmann,
for the writ is no reason why the writ should not issue. If the Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be
mayor and the chief of police, acting under no authority of in contempt of court. Respondent Lukban is found in contempt
law, could deport these women from the city of Manila to of court and shall pay into the office of the clerk of the Supreme
Davao, the same officials must necessarily have the same Court within five days the sum of one hundred pesos (P100). The
means to return them from Davao to Manila. motion of the fiscal of the city of Manila to strike from the record
the Replica al Memorandum de los Recurridos of January 25,
The Supreme Court said that the women were not chattels
1919, is granted. Costs shall be taxed against respondents. So
but Filipino citizens who had the fundamental right not to be
ordered.
forced to change their place of residence.
In concluding this tedious and disagreeable task, may we not be
permitted to express the hope that this decision may serve to
2) The court awarded the writ, that directed Justo Lukban, bulwark the fortifications of an orderly government of laws and
Mayor of the city of Manila, Anton Hohmann, chief of police of to protect individual liberty from illegal encroachment.
the city of Manila, Francisco Sales, governor of the province of
Davao, and Feliciano Ynigo, an hacendero of Davao, to bring
before the court the persons therein named, alleged to be Secretary of National Defense vs. Manalo
deprived of their liberty.
568 SCRA 1, G.R. No. 180906
According to the Supreme Court, there is no law that justifies
October 7, 2008
the action of the respondent in deporting the women of ill refute
to Davao. In upholding the right of the victims on liberty to FACTS:
abode and travel, the SC explained that: these women despite
The respondents (Raymond Manalo and Reynaldo Manalo)
their being in a sense lepers of society are nevertheless not
were abducted by members of the military and Citizens Armed
chattels but Philippine citizens protected by the same
Forces Graphic Unit (CAFGU) from their house in San
constitutional guaranties as are other citizens.
Ildefonso, Bulacan on February 14, 2006. They were accused of
DISPOSITIVE PORTION: being active members and sympathizers of the New People’s
Army. They were brought to several military camps (Fort
Magsaysay, Camp Tecson and Pangasinan) wherein they were

MNI NOTES |76

detained and tortured numerous times in order to make them modify their petition for prohibition into a petition for Writ of
admit that they were members of the NPA. Amparo . The SC remanded the petition to the Court of Appeals
(CA) which in turn rendered a decision in favor of the Manalo
On August 13, 2007, the respondents were able escape from
brothers based on the testimonies of the Manalos and the
their abductors. They then filed a petition for prohibition,
corroborating testimony of the doctor who conducted medical
injunction and TRO before the Supreme Court (SC) to stop the
examinations on the respondents after their escape. Thus, this
petitioners from depriving them of their right to liberty and other
petition.
basic rights.
The petitioners alleged that the CA grievously erred in believing
While the said petition was pending, the Rule on the Writ of
and giving full faith and credit to the incredible and
Amparo was promulgated by the SC on October 24, 2007 in
uncorroborated affidavit/testimony of the respondent.
order to address the prevalence of extralegal killing and enforced
disappearances. The petition for a Writ of Amparo is a remedy ISSUES:
available to any person whose right to life, liberty and security
1) Whether or not the pieces of evidence presented by the
is violated or threatened with violation by an unlawful act or
respondents were enough to grant the Petition for Writ of
omission of a public official or employee, or of a private
Amparo?
individual or entity .
2) Whether or not the respondents still have the right to the
The petition for a Writ of Amparo offers a better remedy to
privilege of the Writ of Amparo even if their enforced
extralegal killings and enforced disappearances as compared to
disappearance had already passed as they have escaped from
a petition for habeas corpus because it swifter since it is done
captivity?
through summary proceedings and requires only substantial
evidence to make appropriate reliefs available to the petitioner . HELD:
It is not an action to determine criminal guilt requiring proof
Their statements can be corroborated by other evidence such as
beyond reasonable doubt, or liability for damages requiring
physical evidence left by the torture they suffered or landmarks
preponderance of evidence, or administrative responsibility
they can identify in the places where they were detained. Where
requiring substantial evidence that will require full and
powerful military officers are implicated, the hesitation of
exhaustive proceedings .
witnesses to surface and testify against them comes as no
Subsequent to the promulgation of the Rule on the Writ of surprise.
Amparo , the respondents filed a petition asking the SC to

MNI NOTES |77

On the applicability of the Writ of Amparo While the "The life to which each person has a right is not a life lived in
respondents admitted that they were no longer in detention and fear that his person and property may be unreasonably
were physically free, they asserted that they were not free in very violated by a powerful ruler.
sense of the word as their movements continued to be restricted
Rather, it is a life lived with the assurance that the government
for fear that people they had named in their Judicial Affidavits
he established and consented to, will protect the security of his
and testified against were still at large and had not been held
person and property. The ideal of security in life and property...
accountable in any way.
pervades the whole history of man. It touches every aspect of
They alleged that their rights to life and liberty are under threat, man's existence."
and that their right to security of person were violated. The SC
First, the right to security of person is "freedom from
characterized the right to security of person and how these were
fear." In its "whereas" clauses, the Universal Declaration of
violated. Freedom from fear/threat as while respondents were
Human Rights (UDHR) enunciates that "a world in which
detained, they were threatened that if they escaped, their
human beings shall enjoy freedom of speech and belief
families, including them, would be killed.
and freedom from fear and want has been proclaimed as the
A guarantee of bodily and psychological integrity and security. highest aspiration of the common people."
A guarantee of protection of one’s rights by the government.
It is the "right to security of person" as the word "security"
Apart from the failure of military elements to provide protection
itself means "freedom from fear."
to respondents by themselves perpetrating the abduction,
detention, and torture, they also miserably failed in conducting In sum, we conclude that respondents' right to security as
an effective investigation of respondents ’ abduction. In sum, the "freedom from threat" is violated by the apparent threat to their
SC concluded that respondents’ right to security as freedom life, liberty and security of person. Their right to security as a
from threat was violated by the apparent threat to their life, guarantee of protection by the government is likewise violated
liberty and security of person. by the ineffective investigation and protection on the part of the
military.
Their right to security as a guarantee of protection by the
government was likewise violated by the ineffective
investigation and protection on the part of the military .

MNI NOTES |78

Arigo vs. Swift on the northwest side of South Shoal of the Tubbataha Reefs,
about 80 miles east-southeast of Palawan. No one was injured in
735 SCRA 102, G.R. No. 206510
the incident, and there have been no reports of leaking fuel or
September 16, 2014 oil.

FACTS: On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral
Scott Swift, expressed regret for the incident in a press
In 1988, Tubbataha was declared a National Marine Park by
statement. Likewise, US Ambassador to the Philippines Harry
virtue of Proclamation No. 306 issued by President Corazon C.
K. Thomas, Jr., in a meeting at the Department of Foreign
Aquino. In 1993, Tubbataha was inscribed by the United Nations
Affairs (DFA) on February 4, “reiterated his regrets over the
Educational Scientific and Cultural Organization (UNESCO) as
grounding incident and assured Foreign Affairs Secretazy Albert
a World Heritage Site.
F. del Rosario that the United States will provide appropriate
On April 6, 2010, Congress passed Republic Act (R.A.) No. compensation for damage to the reef caused by the ship.”
10067, otherwise known as the “Tubbataha Reefs Natural Park
On April 17, 2013, petitioners on their behalf and in
(TRNP) Act of 2009” “to ensure the protection and conservation
representation of their respective sector/organization and others,
of the globally significant economic, biological, sociocultural,
including minors or generations yet unborn, filed a petition for
educational and scientific values of the Tubbataha Reefs into
the issuance of a Writ of Kalikasan with prayer for the issuance
perpetuity.”
of a Temporary Environmental Protection Order (TEPO) under
The USS Guardian is an Avenger-class mine countermeasures Rule 7 of A.M. No. 09-6-8SC, otherwise known as the Rules of
ship of the US Navy. Procedure for Environmental Cases (Rules).

In December 2012, the US Embassy in the Philippines requested Petitioners filed the petition against SCOTT H. SWIFT in his
diplomatic clearance for the said vessel “to enter and exit the capacity as Commander of the US. 7th Fleet and MARK A.
territorial waters of the Philippines and to arrive at the port of RICE in his capacity as Commanding Officer of the USS
Subic Bay for the purpose of routine ship replenishment, Guardian. They were the US respondents. The Philippine
maintenance, and crew liberty.” respondents, meanwhile, included President Aquino, the
Secretary of the DFA, the Secretary of DND, Secretary of
On January 15, 2013, the USS Guardian departed Subic Bay for
DENR, Commandant of Philippines Coast Guard, et al.
its next port of call in Makassar, Indonesia. On January 17, 2013
at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground

MNI NOTES |79

Specifically, petitioners cite the following violations committed government, the suit is deemed to be one against the US itself.
by US respondents under R.A. No. 10067: unauthorized entry The principle of State immunity therefore bars the exercise of
(Section 19); non-payment of conservation fees (Section 21); jurisdiction by this Court over the persons of respondents Swift,
obstruction of law enforcement officer (Section 30); damages to Rice and Robling.
the reef (Section 20); and destroying and disturbing resources
During the deliberations, Senior Associate Justice Antonio T.
(Section 26[g]).
Carpio took the position that the conduct of the US in this case,
Furthermore, petitioners assail certain provisions of the Visiting when its warship entered a restricted area in violation of R.A.
Forces Agreement (VFA) which they want the SC to nullify for No. 10067 and caused damage to the TRNP reef system, brings
being unconstitutional. the matter within the ambit of Article 31 of the United Nations
Convention on the Law of the Sea
Only the Philippine respondents filed their comment to the
(UNCLOS). He explained that while historically, warships
petition. The US respondents did not submit any pleading or
enjoy sovereign immunity from suit as extensions of their
manifestation in this case.
flag State, Art. 31 of the UNCLOS creates an exception to
ISSUE: this rule in cases where they fail to comply with the rules and
regulations of the coastal State regarding passage through
1) Whether or not US respondents may be held liable for
the latter’s internal waters and the territorial sea.
damages caused by USS Guardian.
2) Whether or not the waiver of immunity from suit under VFA
applies in this case. In the case of warships, as pointed out by Justice Carpio,
they continue to enjoy sovereign immunity subject to the
HELD:
following exceptions:
1) Yes, The US respondents were sued in their official capacity
Article 30: Non-compliance by warships with the laws and
as commanding officers of the US Navy who had control and
regulations of the coastal State
supervision over the USS Guardian and its crew. The alleged act
or omission resulting in the unfortunate grounding of the USS If any warship does not comply with the laws and regulations of
Guardian on the TRNP was committed while they were the coastal State concerning passage through the territorial sea
performing official military duties. Considering that the and disregards any request for compliance therewith which is
satisfaction of a judgment against said officials will require made to it, the coastal State may require it to leave the territorial
remedial actions and appropriation of funds by the US sea immediately.

MNI NOTES |80

Article 31: Responsibility of the flag State for damage caused regime of deep seabed mining (Part XI) which considers the
by a warship or other government ship operated for non- oceans and deep seabed commonly owned by mankind,”
commercial purposes pointing out that such “has nothing to do with its the US’
acceptance of customary international rules on navigation.”
The flag State shall bear international responsibility for any loss
or damage to the coastal State resulting from the non-compliance The Court also fully concurred with Justice Carpio’s view that
by a warship or other government ship operated for non- non-membership in the UNCLOS does not mean that the US
commercial purposes with the laws and regulations of the coastal will disregard the rights of the Philippines as a Coastal State
State concerning passage through the territorial sea or with the over its internal waters and territorial sea. We thus expect the
provisions of this Convention or other rules of international law. US to bear “international responsibility” under Art. 31 in
connection with the USS Guardian grounding which adversely
Article 32: Immunities of warships and other government ships
affected the Tubbataha reefs. Indeed, it is difficult to imagine
operated for non-commercial purposes
that our long-time ally and trading partner, which has been
With such exceptions as are contained in subsection A and in actively supporting the country’s efforts to preserve our vital
articles 30 and 31, nothing in this Convention affects the marine resources, would shirk from its obligation to compensate
immunities of warships and other government ships operated for the damage caused by its warship while transiting our internal
non-commercial purposes. A foreign warship’s waters. Much less can we comprehend a Government exercising
unauthorized entry into our internal waters with resulting leadership in international affairs, unwilling to comply with the
damage to marine resources is one situation in which the UNCLOS directive for all nations to cooperate in the global task
above provisions may apply. to protect and preserve the marine environment as provided in
Article 197 of UNCLOS
But what if the offending warship is a non-party to the UNCLOS,
as in this case, the US? Article 197: Cooperation on a global or regional basis

According to Justice Carpio, although the US to date has not States shall cooperate on a global basis and, as appropriate, on a
ratified the UNCLOS, as a matter of long-standing policy the US regional basis, directly or through competent international
considers itself bound by customary international rules on the organizations, in formulating and elaborating international rules,
“traditional uses of the oceans” as codified in UNCLOS. standards and recommended practices and procedures consistent
with this Convention, for the protection and preservation of the
Moreover, Justice Carpio emphasizes that “the US refusal to join
marine environment, taking into account characteristic regional
the UNCLOS was centered on its disagreement with UNCLOS”
features.

MNI NOTES |81

In fine, the relevance of UNCLOS provisions to the present DISPOSITIVE PORTION:
controversy is beyond dispute. Although the said treaty
WHEREFORE, the petition for the issuance of the privilege of
upholds the immunity of warships from the jurisdiction of
the Writ of Kalikasan is hereby DENIED.
Coastal States while navigating the latter’s territorial sea,
the flag States shall be required to leave the territorial sea No pronouncement as to costs.
immediately if they flout the laws and regulations of the
Coastal State, and they will be liable for damages caused by
their warships or any other government vessel operated for Castillo vs. Cruz,
non-commercial purposes under Article 31.
605 SCRA 628, G.R. No. 182165
2) No, The waiver of State immunity under the VF A pertains
November 25, 2009
only to criminal jurisdiction and not to special civil actions such
as the present petition for issuance of a writ of Kalikasan. In fact, FACTS
it can be inferred from Section 17, Rule 7 of the Rules that a
Respondent spouses Cruz leased a parcel of land situated at
criminal case against a person charged with a violation of an
Barrio Guinhawa, Malolos. They refused to vacate the property,
environmental law is to be filed separately.
despite demands by the lessor Provincial Government of
The Court considered a view that a ruling on the application or Bulacan (the Province) which intended to utilize it for local
non-application of criminal jurisdiction provisions of the VFA projects. The Province filed a complaint for unlawful detainer
to US personnel who may be found responsible for the with the Malolos MTC, which in turn rendered judgment against
grounding of the USS Guardian, would be premature and respondent spouses. RTC affirmed the MTC decision.
beyond the province of a petition for a writ of Kalikasan.
The spouses still did not vacate the property. Several cases were
The Court also found unnecessary at this point to determine filed by both parties to enforce their rights over the property.
whether such waiver of State immunity is indeed absolute. In the MTC issued an alias Writ of Demolition in favor of the Province.
same vein, we cannot grant damages which have resulted from Respondents filed a motion for a TRO with the RTC, which was
the violation of environmental laws. The Rules allows the granted. However, the demolition was already implemented
recovery of damages, including the collection of administrative before the TRO issuance.
fines under R.A. No. 10067, in a separate civil suit or that
Petitioners Police Superintendent Felixberto Castillo et al., who
deemed instituted with the criminal action charging the same
were deployed by the City Mayor, were instructed to protect,
violation of an environmental law.

MNI NOTES |82

secure and maintain the possession of the property. Spouses The writ shall cover extralegal killings and enforced
Cruz and her co-respondents refused to turn over the property. disappearances or threats thereof. The writ of habeas data is a
Insisting that the RTC Order of Permanent Injunction enjoined remedy available to any person whose right to privacy in life,
the Province from repossessing it, they shoved petitioners, liberty or security is violated or threatened by an unlawful act or
forcing the latter to arrest them and cause their indictment for omission of a public official or employee or of a private
direct assault, trespassing and other individual or entity engaged in the gathering, collecting or
storing of data or information regarding the person, family,
forms of light threats. Respondents then filed a Motion for Writ
home and correspondence of the aggrieved party.
of Amparo and Habeas Data.
The coverage of the writs is limited to the protection of rights to
ISSUE:
life, liberty and security. And the writs cover not only actual but
Whether or not the Writ of Amparo and Habeas Data is the also threats of unlawful acts or omissions.
proper remedy for the spouses Cruz.
The writ of amparo is intended to address violations of or threats
HELD: to the rights to life, liberty or security, as an extraordinary and
independent remedy beyond those available under the prevailing
No. The Court is, under the Constitution, empowered to
Rules, or as a remedy supplemental to these Rules. What it is
promulgate rules for the protection and enforcement of
not, is a writ to protect concerns that are purely property or
constitutional rights. As a response to extrajudicial killings, the
commercial.
court promulgated the Rule on the Writ of Amparo on 2007 and
the Rule on Habeas Data on 2008. This power was inherent in Consequently, the Rule on the Writ of Amparo in line with the
the Constitutional grant to the courts to promulgate rules for extraordinary character of the writ and the reasonable certainty
human rights. that its issuance demands requires that every petition for the
issuance of the writ must be supported by justifying allegations
The petition for writ of amparo is a remedy available to any
of fact.
person whose right to life, liberty and security is violated or
threatened with violation by an unlawful act or omission of a To thus be covered by the privilege of the writs, respondents
public official or employee, or of a private individual or entity. must meet the threshold requirement that their right to life,
liberty and security is violated or threatened with an unlawful
act or omission. Evidently, the present controversy arose out of
a property dispute between the Provincial Government and

MNI NOTES |83

respondents. Absent any considerable nexus between the acts executory decision in a property dispute actual but also threats
complained of and its effect on respondents right to life, liberty of unlawful acts or omissions.
and security, the Court will not delve on the propriety of
DISPOSITIVE PORTION:
petitioners entry into the property.
WHEREFORE, the petition is GRANTED. The challenged
It bears emphasis that respondents petition did not show any
March 4, 2008 Order of Branch 10 of the Regional Trial Court
actual violation, imminent or continuing threat to their life,
of Malolos is DECLARED NULL AND VOID, and its March
liberty and security. Bare allegations that petitioners in unison,
28, 2008 Decision is REVERSED and SET ASIDE. Special
conspiracy and in contempt of court, there and then willfully,
Civil Action No. 53-M-2008 is DISMISSED.
forcibly and feloniously with the use of force and intimidation
entered and forcibly, physically manhandled the petitioners
(respondents) and arrested the herein petitioners (respondents)
Lee vs. Ilagan
will not suffice to prove entitlement to the remedy of the writ of
amparo. No undue confinement or detention was present. In fact, 738 SCRA 59, G.R. No. 203254
respondents were even able to post bail for the offenses a day
October 8, 2014
after their arrest.
FACTS:
That respondents are merely seeking the protection of their
property rights is gathered from their Joint Affidavit: “Wala Ilagan alleged that he and petitioner Dr. Joy Margate Lee (Lee)
kaming nagawa ipagtanggol ang aming karapatan sa lupa na 45 were former common law partners.
years naming IN POSSSESSION.”
Sometime in July 2011, he visited Lee at the latter’s
Oddly, respondents also seek the issuance of a writ of habeas condominium, rested for a while and thereafter, proceeded to his
data when it is not even alleged that petitioners are gathering, office. Upon arrival, Ilagan noticed that his digital camera was
collecting or storing data or information regarding their person, missing.
family, home and correspondence.
Lee confronted Ilagan at the latter’s office regarding a purported
It need not be underlined that respondents petitions for writs of sex video (subject video) she discovered from the aforesaid
amparo and habeas data are extraordinary remedies which camera involving Ilagan and another woman. Ilagan denied the
cannot be used as tools to stall the execution of a final and video and demanded Lee to return the camera, but to no avail.

MNI NOTES |84

Ilagan allegedly slammed Lee’s head against a wall inside his extraordinary rise in the number of killings and enforced
office and walked away. Lee utilized the said video as evidence disappearances.
in filing various complaints against Ilagan
conceptualized as a judicial remedy enforcing the right to
Ilagan claimed that Lee’s acts of reproducing the subject video privacy, most especially the right to informational privacy of
and threatening to distribute the same to the upper echelons of individuals, which is defined as “the right to control the
the NAPOLCOM and uploading it to the internet violated not collection, maintenance, use, and dissemination of data about
only his right to life, liberty, security, and privacy but also oneself.”
that of the other woman, and thus, the issuance of a writ
Section 1 of the Habeas Data Rule, the writ of habeas
of habeas data in his favor is warranted.
data now stands as “a remedy available to any person
Lee contended that Ilagan’s petition for the issuance of the writ whose right to privacy in life, liberty or security is violated or
of habeas data should be dismissed because: threatened by an unlawful act or omission of a public official or
employee, or of a private individual or entity engaged in the
(a) its filing was only aimed at suppressing the evidence against
gathering, collecting or storing of data or information
Ilagan in the cases she filed; and
regarding the person, family, home, and correspondence of
(b) she is not engaged in the gathering, collecting, or storing of the aggrieved party.”
data regarding the person of Ilagan.
Thus, in order to support a petition for the issuance of such writ,
Section 6 of the Habeas Data Rule essentially requires that the
petition sufficiently alleges, among others, “[t]he manner the
ISSUE:
right to privacy is violated or threatened and how it affects
whether or not the RTC correctly extended the privilege of the the right to life, liberty or security of the aggrieved party.”
writ of habeas data in favor of Ilagan.
In other words, the petition must adequately show that there
exists a nexus between the right to privacy on the one hand,
and the right to life, liberty or security on the other .
RULING:
the writ of habeas data will not issue to protect purely property
A.M. No. 08-1-16-SC, or the Rule on the Writ of Habeas
or commercial concerns nor when the grounds invoked in
Data (Habeas Data Rule), was conceived as a response, given
support of the petitions therefor are vague and doubtful.
the lack of effective and available remedies, to address the

MNI NOTES |85

Court finds that Ilagan was not able to sufficiently allege that violate or threaten with violation the rights to life, liberty, and
his right to privacy in life, liberty or security was or would be security of petitioner-respondent and his family.
violated through the supposed reproduction and threatened
Office of the Ombudsman, concluding that no criminal, civil,
dissemination of the subject sex video.
or administrative liabilities may be imputed to the respondents.
It was reflected therein that the lawyers for the Rodriguezes had
manifested to the FIO that the latter are hesitant to appear
Rodriguez v Gloria Macapagal-Arroyo, et al. (G.R. No.
before them for security reasons
191805, April 16, 2013)
The purported unwillingness of the petitioner to appear or
FACTS:
participate at this stage of the proceedings due to security
the Court was convinced that the Court of Appeals correctly reasons does not affect the rationale of the writ granted by the
found sufficient evidence proving that the soldiers of the 17th CA, as affirmed by this Court.
Infantry Battalion, 5th Infantry Division of the military
In any case, the issue of the existence of criminal, civil, or
abducted petitioner Rodriguez on 6 September 2009, and
administrative liability which may be imputed to the respondents
detained and tortured him until 17 September 2009.
is not the province of amparo proceedings -- rather, the writ
ordering the Office of the Ombudsman to take further action serves both preventive and curative roles in addressing the
problem of extrajudicial killings and enforced disappearances.
The Ombudsman stated that Noriel Rodriguez (Rodriguez)
and his family refused to cooperate with the investigation for It is preventive in that it breaks the expectation of impunity in
security reasons. the commission of these offenses, and it is curative in that it
facilitates the subsequent punishment of perpetrators by
respondents filed their Motion for Reconsideration, arguing
inevitably leading to subsequent investigation and action.
that the soldiers belonging to the 17th Infantry Battalion, 5th
Infantry Division of the military cannot be held accountable for ISSUE:
authoring the abduction and torture of petitioner.
w/n the CA erred in granting the writ
Their arguments revolve solely on the claim that respondents
were never specifically mentioned by name as having
performed, permitted, condoned, authorized, or allowed the
commission of any act or incurrence omission which would

MNI NOTES |86

RULING: The duty to investigate must be undertaken in a serious manner
and not as a mere formality preordained to be ineffective.
The writ of amparo partakes of a summary proceeding that
requires only substantial evidence to make the appropriate
interim and permanent reliefs available to the petitioner.
Razon, Jr v Tagitis (G.R. No. 182498, Dec 3, 2009)
Respondents conveniently neglect to address the findings of
FACTS:
both the CA and this Court that aside from the abduction of
Rodriguez, respondents, specifically 1st Lt. Matutina, had Tagitis, a consultant for the World Bank and the Senior
violated and threatened the former’s right to security when Honorary Counselor for the Islamic Development Bank (IDB)
they made a visual recording of his house, as well as the photos Scholarship Programme, was last seen in Jolo, Sulu.
of his relatives.
Together with Arsimin Kunnong (Kunnong), an IDB scholar,
There is no reasonable justification for this violation of the Tagitis arrived in Jolo by boat in the early morning of October
right to privacy and security of petitioner’s abode, which strikes 31, 2007 from a seminar in Zamboanga City.
at the very heart and rationale of the Rule on the Writ of Amparo.
They immediately checked-in at ASY Pension House. Tagitis
More importantly, respondents also neglect to address our ruling
asked Kunnong to buy him a boat ticket for his return trip the
that the failure to conduct a fair and effective investigation
following day to Zamboanga.
similarly amounted to a violation of, or threat to Rodriguez’s
rights to life, liberty, and security. When Kunnong returned from this errand, Tagitis was no longer
around. The receptionist related that Tagitis went out to buy food
The writ’s curative role is an acknowledgment that the
at around 12:30 in the afternoon and even left his room key with
violation of the right to life, liberty, and security may be caused
the desk. Kunnong looked for Tagitis and even sent a text
not only by a public official’s act, but also by his omission.
message to the latter’s Manila-based secretary who did not know
Accountability may attach to respondents who are imputed with of Tagitis’ whereabouts and activities either; she advised
knowledge relating to the enforced disappearance and who carry Kunnong to simply wait.
the burden of disclosure; or those who carry, but have failed to
On November 4, 2007, Kunnong and Muhammad
discharge, the burden of extraordinary diligence in the
Abdulnazeir N. Matli, a UP professor of Muslim studies and
investigation of the enforced disappearance.
Tagitis’ fellow student counselor at the IDB, reported Tagitis’
disappearance to the Jolo Police Station. On November 7,

MNI NOTES |87

2007, Kunnong executed a sworn affidavit attesting to what he and connect Engr. Tagitis with the different terrorist groups
knew of the circumstances surrounding Tagitis’ disappearance. particularly the Jemaah Islamiyah or JI.
Mary Jean Tagitis filed a Petition for the Writ of Amparo filed her complaint with the PNP Police Station in the
(petition) with the CA through her Attorney-in-Fact, Atty. ARMM in Cotobato and in Jolo, seeking their help to find her
Felipe P. Arcilla. husband, but was told of an intriguing tale by the police that her
husband was not missing but was with another woman having
The petition was directed against Lt. Gen. Alexander Yano,
good time somewhere, which is a clear indication of the refusal
Commanding General, Philippine Army; / Gen. Avelino I.
of the PNP to help and provide police assistance in locating her
Razon, Chief, Philippine National Police (PNP); / Gen. Edgardo
missing husband.
M. Doromal, Chief, Criminal Investigation and Detention Group
(CIDG); / Sr. Supt. Leonardo A. Espina, Chief, Police Anti- Heeding an advise of one police officer, she went to the different
Crime / and Emergency Response; Gen. Joel Goltiao, Regional police headquarters namely Police Headquarters in Cotabato
Director, ARMM-PNP; and / Gen. Ruben Rafael, Chief, Anti- City, Davao City, Zamboanga City and eventually in the
Terror Task Force Comet. National Headquarters in Camp Crame in Quezon City but her
efforts produced no positive results. These trips exhausted all of
in her statement that she approached some of her co-employees
her resources which pressed her to ask for financial help from
with the Land Bank in Digos branch, Digos City, Davao del Sur
friends and relatives.
who likewise sought help from some of their friends in the
military who could help them find/locate the whereabouts of her She has exhausted all administrative avenues and remedies
husband. but to no avail, and under the circumstances, she has no other
plain, speedy and adequate remedy to protect and get the
All of her efforts did not produce any positive results except the
release of her husband, Engr. Morced Tagitis, from the illegal
information from persons in the military who do not want to
clutches of his captors, their intelligence operatives and the like
be identified that Engr. Tagitis is in the hands of the
which are in total violation of the subject’s human and
uniformed men.
constitutional rights, except the issuance of a WRIT OF
According to reliable information she received, subject Engr. AMPARO.
Tagitis is in the custody of police intelligence operatives,
the CA issued its decision confirming that the disappearance
specifically with the CIDG, PNP Zamboanga City, being held
of Tagitis was an "enforced disappearance" under the United
against his will in an earnest attempt of the police to involve

MNI NOTES |88

Nations (UN) Declaration on the Protection of All Persons (a) arrest, detention, abduction or any form of deprivation of
from Enforced Disappearances. liberty;
The CA held that "raw reports" from an "asset" carried "great (b) carried out by agents of the State or persons or groups of
weight" in the intelligence world. It also labeled as "suspect" persons acting with the authorization, support or acquiescence
Col. Kasim’s subsequent and belated retraction of his statement of the State;
that the military, the police, or the CIDG was involved in the
(c) followed by a refusal to acknowledge the detention, or a
abduction of Tagitis.
concealment of the fate of the disappeared person;
ISSUE:
(d) placement of the disappeared person outside the protection
Whether or not the privilege of the Writ of Amparo should be of the law.
extended to Engr. Morced Tagitis.
There was no direct evidence indicating how the victim
RULING: actually disappeared. The direct evidence at hand only shows
that Tagitis went out of the ASY Pension House after depositing
The disappearance of Engr. Morced Tagitis is classified as an
his room key with the hotel desk and was never seen nor heard
enforced disappearance, thus the privilege of the Writ of
of again. The undisputed conclusion, however, from all
Amparo applies.
concerned – the petitioner, Tagitis’ colleagues and even the
Under the UN Declaration enforced disappearance as "the police authorities – is that Tagistis disappeared under mysterious
arrest, detention, abduction or any other form of deprivation of circumstances and was never seen again.
liberty by agents of the State or by persons or groups of persons
A petition for the Writ of Amparo shall be signed and verified
acting with the authorization, support or acquiescence of the
and shall allege, among others (in terms of the portions the
State, followed by a refusal to acknowledge the deprivation of
petitioners cite):
liberty or by concealment of the fate or whereabouts of the
disappeared person, which place such a person outside the (c) The right to life, liberty and security of the aggrieved
protection of the law." party violated or threatened with violation by an unlawful
act or omission of the respondent, and how such threat or
Under this definition, the elements that constitute enforced
violation is committed with the attendant circumstances
disappearance are essentially fourfold:
detailed in supporting affidavits;

MNI NOTES |89

(d) The investigation conducted, if any, specifying the names, the test in reading the petition should be to determine
personal circumstances, and addresses of the investigating whether it contains the details available to the petitioner
authority or individuals, as well as the manner and conduct under the circumstances, while presenting a cause of action
of the investigation, together with any report; showing a violation of the victim’s rights to life, liberty and
security through State or private party action.
(e) The actions and recourses taken by the petitioner to
determine the fate or whereabouts of the aggrieved party and the The petition should likewise be read in its totality, rather than
identity of the person responsible for the threat, act or omission. in terms of its isolated component parts, to determine if the
required elements – namely, of the disappearance, the State or
The framers of the Amparo Rule never intended Section 5(c)
private action, and the actual or threatened violations of the
to be complete in every detail in stating the threatened or actual
rights to life, liberty or security – are present.
violation of a victim’s rights.
The Amparo Rule expressly provides that the "writ shall cover
As in any other initiatory pleading, the pleader must of course
extralegal killings and enforced disappearances or threats
state the ultimate facts constituting the cause of action, omitting
thereof."
the evidentiary details.
We note that although the writ specifically covers "enforced
In an Amparo petition, however, this requirement must be read
disappearances," this concept is neither defined nor penalized in
in light of the nature and purpose of the proceeding, which
this jurisdiction. The records of the Supreme Court Committee
addresses a situation of uncertainty; the petitioner may not be
on the Revision of Rules (Committee) reveal that the drafters of
able to describe with certainty how the victim exactly
the Amparo Rule initially considered providing an elemental
disappeared, or who actually acted to kidnap, abduct or arrest
definition of the concept of enforced disappearance:
him or her, or where the victim is detained, because these
information may purposely be hidden or covered up by those Justice Puno stated that, “as the law now stands, extra-judicial
who caused the disappearance. killings and enforced disappearances in this jurisdiction are not
crimes penalized separately from the component criminal acts
In this type of situation, to require the level of specificity, detail
undertaken to carry out these killings and enforced
and precision that the petitioners apparently want to read into the
disappearances and are now penalized under the Revised Penal
Amparo Rule is to make this Rule a token gesture of judicial
Code and special laws.”
concern for violations of the constitutional rights to life, liberty
and security. To state the obvious, judicial intervention can make a
difference – even if only procedurally – in a situation when the

MNI NOTES |90

very same investigating public authorities may have had a hand Gamboa, a mayor of Dingras Ilocos Norte, whose name was
in the threatened or actual violations of constitutional rights. included in the report, alleged that the PNP – Ilocos Norte
conducted surveillance operations against her and her aides and
The burden for the public authorities to discharge in these
classified her as someone who keeps PAG without the benefit of
situations, under the Rule on the Writ of Amparo, is twofold.
data-verification. She requested her name to be removed from
The first is to ensure that all efforts at disclosure and the PNP list.
investigation are undertaken under pain of indirect contempt
Gamboa then filed a writ for Habeas Data, alleging that her
from this Court when governmental efforts are less than what the
right to privacy was violated.
individual situations require.
The PNP, on the other hand, maintained that they acted within
The second is to address the disappearance, so that the life of the
the bounds of their mandate in conducting the investigation and
victim is preserved and his or her liberty and security restored.
surveillance of Gamboa. The information in their database
Based on these considerations, we conclude that Col. Kasim’s pertained to several criminal cases that were charged against the
disclosure, made in an unguarded moment, unequivocally point Mayor, in particular, some cases for murder.
to some government complicity in the disappearance. The
The RTC dismissed the case. Gamboa thus filed this present
consistent but unfounded denials and the haphazard
petition on certiorari before the Supreme Court.
investigations cannot but point to this conclusion.
ISSUE:
Whether the dismissal of the petition for writ of Habeas
Gamboa v Chan (G.R. No. 193636, July 24, 2012)
Data was proper.
FACTS:
RULING:
Former President Gloria Macapagal-Arroyo issued AO no.
The dismissal of the petition is proper.
275 “Creating an Independent Commission to Address
Existence of Private Armies in the Country” which will be The writ of habeas data is an independent and summary
called the Zenarosa Commission. remedy designed to protect the image, privacy, honor,
information, and freedom of information of an individual,
Its goal is to eliminate private armies before the May 10, 2010
and to provide a forum to enforce ones right to the truth and
elections. The said commission then submitted to the President
to informational privacy.
a report regarding private army groups (PAG).

MNI NOTES |91

It seeks to protect a persons right to control information j. Paje v Casino (G.R. No. 207257, February 03, 2015)
regarding oneself, particularly in instances in which such
Facts:
information is being collected through unlawful means in order
to achieve unlawful ends. The Department of Environment and Natural Resources, issued
an Environmental Compliance Certificate for a proposed coal-
It must be emphasized that in order for the privilege of the writ
fired power plant at Subic, Zambales to be implemented by RP
to be granted, there must exist a nexus between the right to
Energy.
privacy on the one hand, and the right to life, liberty or
security on the other. Hon. Teodoro Casino and a number of legislators filed a Petition
for Writ of Kalikasan against RP energy, SBMA, and Hon.
In this case, it is clear that there are other reliefs available to
Ramon Paje as the DENR secretary on the ground that actual
Gamboa to address the purported damage to her reputation. This
environmental damage will occur if the power plant project is
makes a resort to the extraordinary remedy of the writ of habeas
implemented and that the respondents failed to comply with
data unnecessary and improper. Moreover, She failed to prove
certain laws and rules governing or relating to the issuance of an
that she will be subjected to harassment and unnecessary police
ECC and amendments thereto.
surveillance because of the report as a result of the investigations
against her. Thus, she failed to establish a connection between a The Court of Appeals denied the petition for the Writ of
violation of her right to privacy and a purported violation of her Kalikasan and invalidated the ECC. Both the DENR and Casino
right to life, liberty or security. filed an appeal, the former imputing error in invalidating the
ECC and its amendments, arguing that the determination of the
It is clear from the foregoing discussion that the state interest of
validity of the ECC as well as its amendments is beyond the
dismantling PAGs far outweighs the alleged intrusion on the
scope of a Petition for a Writ of kalikasan; while the latter claim
private life of Gamboa, especially when the collection and
that it is entitled to a Writ of Kalikasan.
forwarding by the PNP of information against her was pursuant
to a lawful mandate. Therefore, the privilege of the writ • Subic Bay metropolitan authority (SBMA) and Taiwan
of habeas data must be denied. Cogeneration Corporation (TCC) entered into a
memorandum of understanding (MOU). They intend to
build a power plant in Subic bay to provide a reliable and
affordable SUBIC BAY INDUSTRIAL PARK

MNI NOTES |92

 • SBMA and TCC entered into another MOU, whereby o The Sangguniang Panglungsod of Olongapo City
TCC undertook to build and operate a coal-fired power issued Resolution No. 131 opposing the
plant. operation of the coal fired power plant.

• TCC identified 20 hectares of land at Sitio Naglatore, Mt. o Still the DENR Issued said environmental
Redondo, Subic Bay Freeport Zone (SBFZ) as the certificate
suitable area for the project and another site of
o The RP Corporation requested the DENR
approximately 10 hectares tobe used as an ash pond.
ENVIRONMENTAL MANAGEMENT
Leasing the land for 50 years at
BUREAU to amend its ECC because they
o 50 dollars pers square meter, payable in 10 equal wanted to include additional components such as
5 year instalments. barge wharf and subsea discharge pipeline.
Eventually, it was granted. ( 1st amendment)
o On april 4, 2009 the SBMA ecology center
approved said memorandum and issued the o Several months later, the RP corporation once
environmental compliance certificate (ECC) again sought to amend the ECC which was
for the construction of coal fired thermal power granted ( 2nd amendment)
plant
Respondents: the Sangguniang Panglalawigan of Zambales and
o Thereafter TCC, assigned it rights to the Liga ng mga BARANGAY OF OLONGAPO issued a
REDONDO PENINSULA ENERGY resolution opposing said operation of coal fired power plant
CORPORATION because it will cause grave environmental damage, that will
affect the health of their local citizens. Moreover acid rain may
o RP Energy then contracted GHD Pty, Ltd.
occur in the combustion of coal; that the incidence of asthma
(GHD) to prepare an Environmental Impact
attacks among residents in the vicinity of the project site may
Statement (EIS) for the proposed coal-fired
increase due to exposure to suspended particles from plant
power plant
operations; and that increased sulfur oxides (SOx) and nitrogen
oxides (NOx) emissions may occur during plant operations.
Other allegations are the following:

• thermal pollution

MNI NOTES |93

 • air pollution • Junisse P. Mercado- Project Director of ongoing
projects for RP Energy regarding the proposed
• dust and combustion gases
power plant project
• water pollution
• Juha Sarkki- (Engr. Sarkki)
- The action against the operation of the coal fired powerplant
• Henry K. Wong
was strengthened when HON PAJE in his capacity as DENR and
other honourables filed: • Dr. Ouano- Environmental Planner in the
Philippines;
a.) a petition for writ of kalikasan;
• David C. Evangelista- A Business Development
b.) Refer the case to the CA for hearing
Analyst working for RP Energy.
- While the case was pending the RP corp once again filed an
Court of Appeals:
amendment to its ECC - FOR THE THIRD TIME
On January 30, 2013, the CA rendered a Decision denying the
- The case was set for hearing, the casino group
privilege of the writ of kalikasan and the application for an
DURING ARRAIGNMENT environment protection order due to the failure of the Casiño
Group to prove that its constitutional right to a balanced and
The Casiño Group presented three witnesses, namely:
healthful ecology was violated or threatened.53 The CA likewise
• Raymond V. Palatino- representative of the Kabataan found no reason to nullify Section 8.3 of DAO No. 2003-30. It
Partylist in the House of Representatives; said that the provision was not ultra vires,as the express power
of the Secretary of the DENR, the Director and Regional
• Alex C. Hermoso- member of the Zambales Chapter of
Directors of the EMB to issue an ECC impliedly includes the
the Kaya Natin Movement and the Zambales Chapter of
incidental power to amend the same. In any case, the CA ruled
the People Power Volunteers for Reform
that the validity of the said section could not be collaterally
• Ramon Lacbain- the Vice- Governor of the Province of attacked in a petition for a writ of kalikasan.
Zambales.
RP Energy presented five witnesses namely:

MNI NOTES |94

Issues: • Whether RP Energy complied with all the
procedures/requirements for the issuance of the
TO THE CASINO GROUP
DENR ECC and its amendment;
• Whether the DENR Environmental Compliance
• Whether the LGU’s approval under Sections 26
Certificate complied with the Certification
and 27 of the Local Government Code is
Precondition as required under Section 59 of
necessary for the issuance of the DENR ECC
Republic Act No. 8371 or the Indigenous
People’s Rights Act of 1997 (IPRA Law) • Whether there is a threatened or actual violation
of environmental laws to justify the Petition;
• Whether RP Energy can proceed with the
construction and operation of the 1x300 MW • Whether the instant Petition should be dismissed
Power Plant without prior consultation with and for failure to comply with the requirements of
approval of the concerned local government units proper verification and certification of non-
forum shopping with respect to some petitioners.
• Whether the DENR administrative order
amending the ECC is void for being beyond Respondent DENR Secretary Paje
one’s legal authority
• Whether the issuance of the DENR ECC and its
• Whether the amendment of RP Energy’s ECC amendment in favor of RP Energy requires
under Section 8.3 of DAO is void. compliance with Section 59 of the IPRA Law, as
well as Sections 26 and 27 of the Local
TO RP ENERGY
Government Code;
• Whether Section 8.3 of DAO No. 2003-30 can be
• Whether Section 8.3 of DAO No. 2003-30 can be
collaterally attacked;
collaterally attacked in this proceeding; and
• Whether petitioners exhausted their
• Whether Section 8.3 of DAO No. 2003-30 is
administrative remedies with respect to the
valid.
amended ECC for the 1x300 MW Power Plant;

MNI NOTES |95

Ruling: THE DOCTRINE OF EXHAUSTION OF
ADMINISTRATIVE REMEDIES
the issues imputed in this case are grouped into 2: The
procedural aspects and the magnitude of damage. In this case the court clarified that these allegations cannot come
within the coverage of the writ of kalikasan because there is no
PROCEDURAL ASPECTS:
causal link or reasonable connection which can be imputed as to
The Rules on the Writ of Kalikasan, which is Part III of the the defects or irregularities in the issuance of the ECC and the
Rules of Procedure for Environmental Cases, was issued by the actual or threatened violation of the constitutional right to a
Court pursuant to its power to promulgate rules for the balanced and healthful ecology. In short these are merely
protection and enforcement of constitutional rights. The writ is procedural issues, not covered by the writ of kalikasan. Hence
categorized as a special civil action and was, thus, the petition should be dismissed. It should be refiled before the
conceptualized as an extraordinary remedy, which aims to proper forum.
provide judicial relief from threatened or actual violation/s of the
VIOLATION OF IPRA LAW?
constitutional right to a balanced and healthful ecology of a
magnitude or degree of damage that transcends political and As to the claims that the issuance of the ECC violated the IPRA
territorial boundaries. Law and LGC and that the LDA, likewise, violated the IPRA
Law, we find the same not to be within the coverage of the writ
RULE 7 SEC 1:
of kalikasan because, assuming there was non-compliance
(1) There is an actual or threatened violation of the therewith, no reasonable connection can be made to an actual or
constitutional right to a balanced and healthful ecology; threatened violation of the right to a balanced and healthful
ecology of the magnitude contemplated under the Rules.
(2) The actual or threatened violation arises from an unlawful
act or omission of a public official or employee, or private EXCEPTIONS WHEN PROCEDURAL ISSUES CAN BE
individual or entity; and CHALLENGED VIA WRIT OF KALIKASAN.

(3) the actual or threatened violation involves or will lead to an a. The writ of kalikasan is principally predicated on an actual
environmental damage of such magnitude as to prejudice the or threatened violation of the constitutional right to a balanced
life, health or property of inhabitants in two or more cities or and healthful ecology, which involves environmental damage of
provinces. a magnitude that transcends political and territorial boundaries.

MNI NOTES |96

b. A party, therefore, who invokes the writ based on alleged The alleged scientific studies mentioned in the Petition have no
defects or irregularities in the issuance of an ECC must not only scientific basis. On the other hand the witnesses presented by the
allege and prove such defects or irregularities, but must also respondents provided an intelligent study on living organisms
provide a causal link or, at least, a reasonable connection and on how the natural course of the ecosystem works.
between the defects or irregularities in the issuance of an ECC
In general, the proper procedure to question a defect in an ECC
and the actual or threatened violation of the constitutional right
is to follow the appeal process provided in DAO 2003-30 and
to a balanced and healthful ecology of the magnitude
the Revised Manual. After complying with the proper
contemplated under the Rules
administrative appeal process, recourse may be made to the
c. An example of a defect or an irregularity in the issuance of an courts in accordance with the doctrine of exhaustion of
ECC, which could conceivably warrant the granting of the administrative remedies.
extraordinary remedy of the writ of kalikasan, is a case where
However, as earlier discussed, in exceptional cases, a writ of
there are serious and substantial misrepresentations or fraud in
kalikasan may be availed of to challenge defects in the ECC
the application for the ECC, which, if not immediately nullified,
provided that:
would cause actual negative environmental impacts of the
magnitude contemplated under the Rules, because the (1) the defects are causally linked or reasonably connected to an
government agencies and LGUs, with the final authority to environmental damage of the nature and magnitude
implement the project, may subsequently rely on such contemplated under the Rules on Writ of Kalikasan, and
substantially defective or fraudulent ECC in approving the
(2) the case does not violate, or falls under an exception to, the
implementation of the project.
doctrine of exhaustion of administrative remedies and/or
ON THE MAGNITUDE OF DAMAGE primary jurisdiction.
In addition the witnesses presented by the Casino group are not Exclusive for Writ of Kalikasan – Notes
experts on environmental matters neither do they have technical
Whether the parties may raise questions of fact on appeal on
knowledge of the project design. The Casiño Group failed to
the issuance of a writ of Kalikasan
carry the onus of proving the alleged significant negative
environmental impacts of the project. In comparison, RP Energy - Yes, the parties may raise questions of fact on appeal on the
presented several experts to refute the allegations of the Casiño issuance of a writ of Kalikasan because the Rules on the Writ of
Group. Lacbain also admitted that he is neither a scientist nor an kalikasan (Rule 7, Section 16 of the Rules of Procedure for
expert on matters of the environment. Environmental Cases) allow the parties to raise, on appeal,

MNI NOTES |97

questions of fact— and, thus, constitutes an exception to Rule k.International Service for the Acquisition of Agri-Biotech
45 of the Rules of Court— because of the extraordinary nature Applications, Inc. v Greenpeace Southeast Asia,et al (G.R.
of the circumstances surrounding the issuance of a writ of No. 209271, December 08, 2015)
kalikasan.
Facts:
Whether the validity of an ECC can be challenged via a writ
• In 2010, In pursuance of a collaborative research and
of Kalikasan - Yes, the validity of an ECC can be challenged
development project on eggplants that are resistant to the
via a writ of Kalikasan because such writ is principally
fruit and shoot borer, a Memorandum of Undertaking
predicated on an actual or threatened violation of the
was executed between International Service for the
constitutional right to a balanced and healthful ecology, which
Acquisition of Agri-Biotech Applications, Inc.
involves environmental damage of a magnitude that transcends
(ISAAA), University of the Philippines Los Banos
political and territorial boundaries.
Foundation, Inc. (UPLBFI), and UP Mindanao
A party, therefore, who invokes the writ based on alleged defects Foundation, Inc. (UPMFI).
or irregularities in the issuance of an ECC must not only allege
• The UPLB is another partner agency in the research. It
and prove such defects or irregularities, but must also provide a
stated that the pest-resistant crop subject of the field trial
causal link or, at least, a reasonable connection between the
was described as a “bio-engineered eggplant”.
defects or irregularities in the issuance of an ECC and the actual
or threatened violation of the constitutional right to a balanced • The National Committee on Biosafety of the Philippines
and healthful ecology of the magnitude contemplated under the (NCBP) issued a Certificate of Completion of Contained
Rules. Otherwise, the petition should be dismissed outright and Experiment which was conducted from 2007 to 2009;
the action re-filed before the proper forum with due regard to the that when the experiment was being conducted, all the
doctrine of exhaustion of administrative remedies. biosafety measures have been complied with and there
In the case at bar, no such causal link or reasonable connection were no inconvenient incidents that happened.
was shown or even attempted relative to the aforesaid second set • The Bureau of Plant Industry (BPI) issued biosafety
of allegations. It is a mere listing of the perceived defects or permits to UPLB and the field testing commenced on the
irregularities in the issuance of the ECC. trial sites.

• On 2012, Greenpeace, MASIPAG, and individual

respondents filed a petition for a writ of kalikasan and a

MNI NOTES |98

 writ of continuing mandamus with prayer for the 2. The case is not yet moot, since it is capable of repetition yet
issuance of a Temporary Environmental Protection evading review;
Order (TEPO) alleging that the Bt Talong Field Trials
3. The alleged non-compliance with environmental and local
violate their constitutional right to health and a balanced
government laws present justiciable controversies for resolution
ecology.
by the court.
• The Supreme Court issued the writ of kalikasan against
ISAAA, EMB, BPI, FPA, and UPLB, ordering them to
file a verified return. • On May 17, 2013, CA rendered a decision in favor of
Greenpeace, et al. finding that the Precautionary
• The respondents contend that all environmental laws
Principle finds relevance in the case.
were complied with; that the Bt Talong Project is not
covered by the Philippine Environmental Impact • CA rejected the Motions for Reconsiderations filed by
Statement Law; that the allegations regarding the safety ISAAA, EMB/BPI/FPA, UPLB, and UPLBFI, rejecting
of the Bt Talong are irrelevant in the field trial stage since the argument that the CA violated UPLB’s right to
it would not be consumed by humans or animals; that academic freedom. CA ruled that the writ only stops the
Greenpeace have no legal standing because they do not field trials, not the research.
stand to suffer any direct injury as a result of the field
• CA ruled that the theory of introducing a genetically
tests; that the Precautionary Principle does not apply
modified plant into our ecosystem is an “ecologically
since the field testing is only part of a continuing study
imbalancing act”.
to ensure that the field trials have no negative impact on
the environment.

• The SC referred the case to CA. Issues:

3. W/N there is a violation of the doctrines of primary
jurisdiction and exhaustion of administrative remedies
CA Ruling - In a Resolution dated October 12, 2012, the CA
resolved that: 4. W/N the law on environmental impact statement/assessment
applies on projects involving the introduction and propagation
1. The Greenpeace, et al. possess legal standing;
of GMOs in the country.

MNI NOTES |99

5. W/N there is neglect or unlawful omission committed by the protection, thus, Greenpeace, et al. is justified in coming to the
public respondents in the processing and evaluation of the SC.
applications for Bt Talong Field Testing
4. YES. EO 514 mandates that concerned departments and
6. W/N the Precautionary Principle applies. agencies, most particularly petitioners DENR-EMB, BPI, and
FPA, to make a determination whether the EIS system should
apply to the release of GMOs into the environment and issue
Ruling: joint guidelines on the matter.
5. YES. The DAO 2002-08 and related DA order are not the only
legal bases for regulating field trials of GM plants and plant
SC Ruling:
products. EO 514 clearly provides that the NBF applies to the
1. YES. The liberalized rule on standing is now enshrined in the development, adoption, and implementation of all biosafety
Rules of Procedure for Environmental Cases which allows the policies, measures and guidelines and in making biosafety
filing of a citizen suit in environmental cases. The provision on decisions concerning the research, development, handling and
citizen suits in the Rules, “collapses the traditional rule on use, transboundary movement, release into the environment and
personal and direct interest, on the principle that humans are management of regulated articles.
stewards of nature,” and aims to “further encourage the
6. YES. The Precautionary Principle originated in Germany in
protection of the environment.”
the 1960s, expressing the normative idea that governments are
2. NO. The case falls under the “capable of repetition yet obliged to “foresee and forestall” harm to the environment.
evading review” exception to the mootness principle. The
There exists a preponderance of evidence that the release of the
human and environmental health hazards posed by the
GMOs into the environment threatens to damage our ecosystems
introduction of a genetically modified plant which is a very
and not just the field trial sites, and eventually the health of our
popular staple vegetable among Filipinos is an issue of
people once the Bt eggplants are consumed as food.
paramount public interest.
Adopting the precautionary approach, the SC ruled that the
3. NO. The provisions of DAO 2002-08 do not provide a
principles of the NBF need to be operationalized first by the
speedy or adequate remedy for the respondents to determine
coordinated actions of the concerned departments and agencies
the questions of unique national and local importance raised in
before allowing the release into the environment of genetically
this case that pertain to laws and rules for environmental
modified eggplants.

MNI NOTES |100

The precautionary approach entailed inputs from stakeholders, issuance of a Temporary Environmental Protection Order
including marginalized farmers, not just the scientific (TEPO) before the CA. That Inayawan landfill causes serious
community. This proceeds from the realization that acceptance environmental damage which threatens and violates their right
of uncertainty is not only a scientific issue, but is related to to a balanced and healthful ecology and has already outgrown its
public policy and involves an ethical dimension. usefulness and has become ill-suited for its purpose. Respondent
further asserted that its reopening and continued operation
violates several environmental laws and government
l.Osmena v Garganera (G.R. No. 231164, March 20,2018) regulations.

Facts: The CA, granted a writ of kalikasan, required petitioner to file a

verified return and a summary hearing was set for the application
Inawayan landfill served garbage disposal area of Cebu City as
of TEPO. But Mayor Osmeña averred that respondent failed to
approved by DENR in 1993. In 2011, former Mayor Rama
comply with the condition precedent which requires 30-day
ordered the closure of the said landfill and subsequent SP
notice to the public officer concerned prior to the filing of a
resolutions were approved for the closure and rehabilitation of
citizens suit under R.A. 9003 and R.A. 8749.
the landfill. As a result, the Inayawan landfill was partially
closed and all wastes from Cebu City were disposed in a However, CA still granted the privilege of the writ of kalikasan
privately-operated landfill in Consolacion and formally closed which ordered Mayor Osmeña and/or his representatives to
in 2015. In 2016, under the administration of Mayor Osmeña, permanently cease and desist from dumping or disposing of
they sought with DENR regarding the temporary opening of the garbage or solid waste at the Inayawan landfill and to continue
landfill, which the DENR did not opposed. But, after the DOH to rehabilitate the same. Mayor Osmeña's motion for
inspection, it recommends the immediate closure of the landfill reconsideration was likewise denied, hence, this petition.
due to the lack of sanitary requirements, environmental, health
Issue:
and community safety issues.
Whether or not, CA correctly ruled that the requirements for the
On September 23, 2016, Joel Capili Garganera for and on his
grant of the privilege of the writ of kalikasan were sufficiently
behalf, and in representation of the People of the Cities of Cebu
established.
and Talisay and the future generations, including the unborn
(respondent) filed a petition for writ of kalikasan with prayer for
the

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Ruling: • the actual or threatened violation arises from an
unlawful act or omission of a public official or
Yes. Here, the present petition for writ of kalikasan under the
employee, or private individual or entity; and
RPEC is a separate and distinct action from R.A. 9003 and R.A.
8749. • the actual or threatened violation involves or will
lead to an environmental damage of such
A writ of kalikasan is an extraordinary remedy covering
magnitude as to prejudice the life, health or
environmental damage of such magnitude that will
property of inhabitants in two or more cities or
prejudice the life, health or property of inhabitants in two or
provinces.
more cities or provinces
Expectedly, the Rules do not define the exact nature or degree
It is designed for a narrow but special purpose: to accord a
of environmental damage but only that it must be sufficiently
stronger protection for environmental rights, aiming, among
grave, in terms of the territorial scope of such damage, so as to
others, to provide a speedy and effective resolution of a case
call for the grant of this extraordinary remedy. The gravity of
involving the violation of one's constitutional right to a healthful
environmental
and balanced ecology that transcends political and territorial
boundaries, and to address the potentially exponential nature of damage sufficient to grant the writ is, thus, to be decided on a
large-scale ecological threats. case-to-case basis.
Given that the writ of kalikasan is an extraordinary remedy and The Court is convinced from the evidence on record that the
the RPEC allows direct action to this Court and the CA where it respondent has sufficiently established the aforementioned
is dictated by public welfare, this Court is of the view that the requirements for the grant of the privilege of the writ of
prior 30-day notice requirement for citizen suits under R.A. 9003 kalikasan. The record discloses that the City Government's
and R.A. 8749 is inapplicable. It is ultimately within the Court's resumption of the garbage dumping operations at the Inayawan
discretion whether or not to accept petitions brought directly landfill has raised serious environmental concerns.
before it. Under Section 1 of Rule 7 of the RPEC, the following
Section 5, Rule 2 of the Rules of Procedure for
requisites must be present to avail of this extraordinary remedy:
Environmental Cases (RPEC), is instructive on the matter:
• there is an actual or threatened violation of the
constitutional right to a balanced and healthful
ecology; Section 5. Citizen suit.—

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Any Filipino citizen in representation of others, including Section 3, Rule 7 of RPEC allows direct resort to this Court or
minors or generations yet unborn, may file an action to enforce with any of the stations of the CA, which states:
rights or obligations under environmental laws. Upon the filing
of a citizen suit, the court shall issue an order which shall
contain a brief description of the cause of action and the reliefs Section 3. Where to file. – The petition shall be filed with the
prayed for, requiring all interested parties to manifest their Supreme Court or with any of the stations of the Court of
interest to intervene in the case within fifteen (15) days from Appeals.
notice thereof. The plaintiff may publish the order once in a
newspaper of a general circulation in the Philippines or furnish
all affected barangays copies of said order. Given that the writ of kalikasan is an extraordinary remedy and
the RPEC allows direct action to this Court and the CA where it
Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall
is dictated by public welfare, this Court is of the view that the
be governed by their respective provisions.
prior 30 day notice requirement for citizen suits under R.A. 9003
Section 1, Rule 7 of RPEC also provides: and R.A. 8749 is inapplicable. It is ultimately within the Court’s
discretion whether or not to accept petitions brought directly
before it.
Section 1. Nature of the writ.– The Writ is a remedy available to
a natural or juridical person, entity authorized by law, people’s
organization, non--governmental organization, or any public m.Rubrico v Macapagal-Arroyo (G.R. No. 183871)February
interest group accredited by or registered with any government 18, 2010
agency, on behalf of persons whose constitutional right to a
Facts:
balanced and healthful ecology is violated, or threatened with
violation by an unlawful act or omission of a public official or On 03 April 2007, Lourdes Rubrico, chair of Ugnayan ng
employee, or private individual or entity, involving Maralita para sa Gawa Adhikan, was abducted by armed men
environmental damage of such magnitude as to prejudice the belonging to the 301st Air Intelligence and Security Squadron
life, health or property of inhabitants in two or more cities or (AISS) based in Lipa City while attending a Lenten pabasa in
provinces. Dasmarinas, Cavite. She was brought to and detained at the air
base without charges. She was released a week after relentless

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interrogation, but only after she signed a statement that she writ be served on Darwin Sy/Reyes, Santana, Alfaro, Cuaresma,
would be a military asset. and Jonathan. By a separate resolution, the CA dropped the
President as respondent in the case.
Despite her release, she was tailed on at least 2 occasions. Hence,
Lourdes filed a complaint with the Office of the Ombudsman a On 31 July 2008, after due proceedings, the CA rendered its
criminal complaint for kidnapping and arbitrary detention and partial judgment, dismissing the petition with respect to
grave misconduct against Cuaresma, Alfaro, Santana, and Esperon, Razon, Roquero, Gomez, and Ombudsman.
Jonathan, but nothing has happened.
She likewise reported the threats and harassment incidents to the
Issue:
Dasmarinas municipal and Cavite provincial police stations , but
nothing eventful resulted from their investigation. Whether or not the doctrine of command responsibility is
applicable in an amparo petition.
Meanwhile, the human rights group Karapatan conducted an
investigation which indicated that men belonging to the Armed
Forces of the Philippines (AFP) led the abduction of Lourdes.
Ruling:
Based on such information, Rubrico filed a petition for the writ
No. The presidential immunity from suit remains preserved
of amparo with the Supreme Court on 25 October 2007, praying
under our system of government, albeit not expressly reserved
that respondents be ordered to desist from performing any
in the present constitution.
threatening act against the security of petitioners and for the
Ombudsman to immediately file an information for kidnapping Addressing a concern of his co-members in the 1986
qualified with the aggravating circumstance of gender of the Constitutional Commission on the absence of an express
offended party. provision on the matter, Fr. Joaquin Bernas, S.J. observed that it
was already understood in jurisprudence that the President may
Rubrico also prayed for damages and for respondents to produce
not be sued during his or her tenure.
documents submitted to any of them on the case of Lourdes.
Settled is the doctrine that the President, during his tenure of
The Supreme Court issued the desired writ and then referred the
office or actual incumbency, may not be sued in any civil or
petition to the Court of Appeals (CA) for summary hearing and
criminal case, and there is no need to provide for it in the
appropriate action. At the hearing conducted on 20 November
Constitution or law.
2007, the CA granted petitioner’s motion that the petition and

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It will degrade the dignity of the high office of the President, the formulated, command responsibility is an omission mode of
Head of State, if he can be dragged into court litigations while individual criminal liability, whereby the superior is made
serving as such. responsible for crimes committed by his subordinates for failing
to prevent or punish the perpetrators.
The Court also affirmed the dismissal of the amparo case against
other respondents for failure of the petition to allege ultimate There is no Philippine law that provides for criminal liability
facts as to make out a case against that body for the enforced under the Doctrine of Command Responsibility –
disappearance of Lourdes and the threats and harassment that
While there are several pending bills on command
followed.
responsibility, there is still no Philippine law that provides for
DOCTRINE OF COMMAND RESPONSIBILITY and THE criminal liability under that doctrine. It may plausibly be
WRIT OF AMPARO contended that command responsibility, as legal basis to hold
military/police commanders liable for extra -legal killings,
Doctrine of Command Responsibility has little, if at all,
enforced disappearances, or threats, may be made applicable to
bearing in amparo proceedings –
this jurisdiction on the theory that the command responsibility
Command responsibility, as a concept defined, developed, and doctrine now constitutes a principle of international law or
applied under international law, has little, if at all, bearing in customary international law in accordance with the
amparo proceedings. incorporation clause of the Constitution. Still, it would be
inappropriate to apply to these proceedings the doctrine of
The evolution of the command responsibility doctrine finds its
command responsibility, as the CA seemed to have done, as a
context in the development of laws of war and armed combats.
form of criminal complicity through omission, for individual
According to Fr. Bernas, command responsibility, in its si
respondents criminal liability, if there be any, is beyond the
mplest terms, means the responsibility of commanders for
reach of amparo. In other words, the Court does not rule in such
crimes committed by subordinate members of the armed forces
procee dings on any issue of criminal culpability, even if
or other persons subject to their control in international wars or
incidentally a crime or an infraction of an administrative rule
domestic conflict. In this sense, command responsibility is
may have been committed.
properly a form of criminal complicity. The Hague Conventions
of 1907 adopted the doctrine of command responsibility, Reluctance of the amparo petitioners or their witnesses to
foreshadowing the present-day precept of holding a superior cooperate ought not to pose a hindrance to the police in
accountable for the atrocities committed by his subordinates pursuing, on its own initiative, the investigation in question
should he be remiss in his duty of control over them. As then to its natural end –

MNI NOTES |105

[T]he right to security of persons is a guarantee of the protection n.Vivares v St Theresa’s College (G.R. No.
of one’s right by the government. And this protection includes 202666September 29, 2014)
conducting effective investigations of extra-legal killings,
Facts:
enforced disappearances, or threats of the same kind. The nature
and importance of an investigation are captured in the Velasquez Petitioner Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara
Rodriguez case, in which the Inter-American Court of Human (Julienne), both minorsand graduating high school students at St.
Rights pronounced: [The duty to investigate] must be Theresa's College (STC), took digital pictures of themselves
undertaken in a serious manner and not as a mere formality clad only in their undergarments.
preordained to be ineffective. An investigation must have an
These pictures were then uploaded by Angela Lindsay Tan
objective and be assumed by the State as its own legal duty, not
(Angela) on her Facebook, Mylene Rheza T. Escudero
a step taken by private interests that depends upon the initiative
(Respondent), a computer teacher at STC’s high school
of the victim or his family or upon offer of proof, without an
department, learned from her students that the petitioners posted
effective search for the truth by the government.
the said pictures online, depicting themselves from the waist up,
dressed only in brassieres.
The remedy of amparo ought to be resorted to and granted Upon discovery, Escudero reported the matter and, through one
judiciously – The privilege of the writ of amparo is envisioned of her student’s Facebook page, STC’s Discipline-in-Charge, for
basically to protect and guarantee the rights to life, liberty, and appropriate action. after an investigation STC found the
security of persons, free from fears and threats that vitiate the identified students violated the school’s Student Handbook, as
quality of this life. It is an extraordinary writ conceptualized and part of their penalty STC barred the petitioners from joining the
adopted in light of and in response to the prevalence of extra - commencement exercises.
legal killings and enforced disappearances. Accordingly, the
Parents of the students filed their memorandum and the RTC
remedy ought to be resorted to and granted judiciously, lest the
issued a temporary restraining order (TRO) allowing the
ideal sought by the Amparo Rule be diluted and undermined by
students to attend the graduation ceremony, to which STC filed
the indiscriminate filing of amparo petitions for purposes less
a motion for reconsideration, Despite the issuance of the TRO,
than the desire to secure amparo reliefs and protection and/or on
STC (Respondent) nevertheless, barred the sanctioned students
the basis of unsubstantiated allegations.
from participating in the graduation rites.

MNI NOTES |106

Petitioners, who are the respective parents of the minors, filed a It is a remedy available to any person whose right to privacy in
Petition for the Issuance of a Writ of Habeas Data. Respondents life, liberty or security is violated or threatened by an unlawful
averred there can be no violation of their right to privacy as there act or omission of a public official or employee, or of a private
is no reasonable expectation of privacy on Facebook. RTC individual or entity engaged in the gathering, collecting or
dismissed the petition for habeas data. storing of data or information regarding the person, family,
home and correspondence of the aggrieved party.
Issues:
It is an independent and summary remedy designed to protect
Whether a writ of habeas data should be issued given the factual
the image, privacy, honor, information, and freedom of
milieu?
information of an individual, and to provide a forum to enforce
Whether or not there was indeed an actual or threatened one’s right to the truth and to informational privacy. It seeks to
violation of the right to privacy in the life, liberty, or security of protect a person’s right to control information regarding oneself,
the minors involved in this case. particularly in instances in which such information is being
collected through unlawful means in order to achieve unlawful
Ruling:
ends.
1. NO, The writ of habeas data is a remedy available to any
In developing the writ of habeas data, the Court aimed to protect
person whose right to privacy in life, liberty or security is
an individual’s right to informational privacy, among others. A
violated or threatened by an unlawful act or omission of a
comparative law scholar has, in fact, defined habeas data as “a
public official or employee, or of a private individual or
procedure designed to safeguard individual freedom from
entity engaged in the gathering, collecting or storing of data
abuse in the information age.”
or information regarding the person, family, home and
correspondence of the aggrieved party. The provision, when Issuance of writ of habeas data; requirements
taken in its proper context, as a whole, irresistibly conveys
1. The existence of a person’s right to informational
the idea that habeas data is a protection against unlawful
privacy
acts or omissions of public officials and of private individuals
or entities engaged in gathering, collecting, or storing data 2. An actual or threatened violation of the right to privacy
about the aggrieved party and his or her correspondences, in life, liberty or security of the victim (proven by at least
or about his or her family. substantial evidence)
Nature of Writ of Habeas Data

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Note that the writ will not issue on the basis merely of an alleged individual or entity need not be in the business of collecting or
unauthorized access to information about a person. storing data.
The writ of habeas data is not only confined to cases of To “engage” in something is different from undertaking a
extralegal killings and enforced disappearances business endeavour. To “engage” means “to do or take part in
something.” It does not necessarily mean that the activity must
The writ of habeas data can be availed of as an independent
be done in pursuit of a business. What matters is that the person
remedy to enforce one’s right to privacy, more specifically the
or entity must be gathering, collecting or storing said data or
right to informational privacy. The remedies against the
information about the aggrieved party or his or her family.
violation of such right can include the updating, rectification,
Whether such undertaking carries the element of regularity, as
suppression or destruction of the database or information or files
when one pursues a business, and is in the nature of a personal
in possession or in control of respondents. Clearly then, the
endeavour, for any other reason or even for no reason at all, is
privilege of the Writ of Habeas Data may also be availed of in
immaterial and such will not prevent the writ from getting to said
cases outside of extralegal killings and enforced disappearances.
person or entity.
2. The Supreme Court held that STC did not violate
As such, the writ of habeas data may be issued against a school
petitioners’ daughters’ right to privacy as the subject digital
like STC.
photos were viewable either by the minors’ Facebook
friends, or by the public at large. Respondents were mere Right to informational privacy
recipients of what were posted. They did not resort to any
Right to informational privacy is the right of individuals to
unlawful means of gathering the information as it was
control information about themselves. Several commentators
voluntarily given to them by persons who had legitimate
regarding privacy and social networking sites, however, all
access to the said posts. Clearly, the fault, if any, lies with the
agree that given the millions of OSN users, “in this Social
friends of the minors.
Networking environment, privacy is no longer grounded in
Meaning of “engaged” in the gathering, collecting or storing reasonable expectations, but rather in some theoretical protocol
of data or information better known as wishful thinking.” So the underlying question
now is: Up to what extent is the right to privacy protected in
Habeas data is a protection against unlawful acts or omissions of
OSNs?
public officials and of private individuals or entities engaged in
gathering, collecting, or storing data about the aggrieved party Facebook Privacy Tools
and his or her correspondences, or about his or her family. Such

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To address concerns about privacy, but without defeating its others, from another user’s point of view. In other
purpose, Facebook was armed with different privacy tools words, Facebook extends its users an avenue to make the
designed to regulate the accessibility of a user’s profile as well availability of their Facebook activities reflect their choice as
as information uploaded by the user. In H v. W, the South to “when and to what extent to disclose facts about themselves
Gauteng High Court recognized this ability of the users to – and to put others in the position of receiving such
“customize their privacy settings,” but did so with this caveat: confidences.”
“Facebook states in its policies that, although it makes every
Considering that the default setting for Facebook posts is
effort to protect a user’s information, these privacy settings are
“Public,” it can be surmised that the photographs in
not foolproof.”
question were viewable to everyone on Facebook, absent any
For instance, a Facebook user can regulate the visibility and proof that petitioners’ children positively limited the
accessibility of digital images (photos), posted on his or her disclosure of the photograph. If such were the case, they
personal bulletin or “wall,” except for the user’s profile picture cannot invoke the protection attached to the right to
and ID, by selecting his or her desired privacy setting: informational privacy.
1. Public – the default setting; every Facebook user can No privacy invasion by STC; fault lies with the friends of
view the photo; minors - Respondent STC can hardly be taken to task for the
perceived privacy invasion since it was the minors’ Facebook
2. Friends of Friends – only the user’s Facebook friends and
friends who showed the pictures to Tigol. Respondents were
their friends can view the photo;
mere recipients of what were posted. They did not resort to any
3. Friends – only the user’s Facebook friends can view the unlawful means of gathering the information as it was
photo; voluntarily given to them by persons who had legitimate access
to the said posts. Clearly, the fault, if any, lies with the friends
4. Custom – the photo is made visible only to particular
of the minors. Curiously enough, however, neither the minors
friends and/or networks of the Facebook user; and
nor their parents imputed any violation of privacy against the
5. Only Me – the digital image can be viewed only by the students who showed the images to Escudero.
user.
Different scenario of setting is set on “Me Only” or
The foregoing are privacy tools, available to Facebook users, “Custom” - Had it been proved that the access to the pictures
designed to set up barriers to broaden or limit the visibility of his posted were limited to the original uploader, through the “Me
or her specific profile content, statuses, and photos, among Only” privacy setting, or that the user’s contact list has been

MNI NOTES |109

screened to limit access to a select few, through the “Custom”
setting, the result may have been different, for in such instances,
the intention to limit access to the particular post, instead of
being broadcasted to the public at large or all the user’s friends
en masse, becomes more manifest and palpable.

MNI NOTES |110