Human Rights Case Digest.docx

6.

GEN RAZON VS. TAGITIS

FACTS: The established facts show that Tagitis, a consultant for the World Bank and the Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship Programme, was last seen in Jolo, Sulu. Together with Arsimin Kunnong (Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early morning of October 31, 2007 from a seminar in Zamboanga City. They immediately checked-in at ASY Pension House. Tagitis asked Kunnong to buy him a boat ticket for his return trip the following day to Zamboanga. When Kunnong returned from this errand, Tagitis was no longer around. The receptionist related that Tagitis went out to buy food at around 12:30 in the afternoon and even left his room key with the desk. Kunnong looked for Tagitis and even sent a text message to the latter’s Manila-based secretary who did not know of Tagitis’ whereabouts and activities either; she advised Kunnong to simply wait. On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP professor of Muslim studies and Tagitis’ fellow student counselor at the IDB, reported Tagitis’ disappearance to the Jolo Police Station. On November 7, 2007, Kunnong executed a sworn affidavit attesting to what he knew of the circumstances surrounding Tagitis’ disappearance. More than a month later (on December 28, 2007), Mary Jean Tagitis filed a Petition for the Writ of Amparo (petition) with the CA through her Attorneyin-Fact, Atty. Felipe P. Arcilla.The petition was directed against Lt. Gen. Alexander Yano, Commanding General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation and Detention Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police Anti-Crime and Emergency Response; Gen. Joel Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task Force Comet. Mary Jean said in her statement that she approached some of her co-employees with the Land Bank in

1

Digos branch, Digos City, Davao del Sur who likewise sought help from some of their friends in the military who could help them find/locate the whereabouts of her husband. All of her efforts did not produce any positive results except the information from persons in the military who do not want to be identified that Engr. Tagitis is in the hands of the uniformed men. According to reliable information she received, subject Engr. Tagitis is in the custody of police intelligence operatives, specifically with the CIDG, PNP Zamboanga City, being held against his will in an earnest attempt of the police to involve and connect Engr. Tagitis with the different terrorist groups particularly the Jemaah Islamiyah or JI. She then filed her complaint with the PNP Police Station in the ARMM in Cotobato and in Jolo, seeking their help to find her husband, but was told of an intriguing tale by the police that her husband was not missing but was with another woman having good time somewhere, which is a clear indication of the refusal of the PNP to help and provide police assistance in locating her missing husband. Heeding an advise of one police officer, she went to the different police headquarters namely Police Headquarters in Cotabato City, Davao City, Zamboanga City and eventually in the National Headquarters in Camp Crame in Quezon City but her efforts produced no positive results. These trips exhausted all of her resources which pressed her to ask for financial help from friends and relatives. She has exhausted all administrative avenues and remedies but to no avail, and under the circumstances, she has no other plain, speedy and adequate remedy to protect and get the release of her husband, Engr. Morced Tagitis, from the illegal clutches of his captors, their intelligence operatives and the like which are in total violation of the subject’s human and constitutional rights, except the issuance of a WRIT OF AMPARO. On the same day the petition was filed, the CA immediately issued the Writ of Amparo, set the case for hearing on January 7, 2008, and directed the

petitioners to file their verified return within seventytwo (72) hours from service of the writ. In their verified Return filed during the hearing of January 27, 2008, the petitioners denied any involvement in or knowledge of Tagitis’ alleged abduction. They argued that the allegations of the petition were incomplete and did not constitute a cause of action against them; were baseless, or at best speculative; and were merely based on hearsay evidence. In addition, they all claimed that they exhausted all means, particularly taking pro-active measures to investigate, search and locate Tagitis and to apprehend the persons responsible for his disappearance. THE CA RULING On March 7, 2008, the CA issued its decision confirming that the disappearance of Tagitis was an "enforced disappearance" under the United Nations (UN) Declaration on the Protection of All Persons from Enforced Disappearances. The CA held that "raw reports" from an "asset" carried "great weight" in the intelligence world. It also labeled as "suspect" Col. Kasim’s subsequent and belated retraction of his statement that the military, the police, or the CIDG was involved in the abduction of Tagitis. The CA characterized as "too farfetched and unbelievable" and "a bedlam of speculation" police theories painting the disappearance as "intentional" on the part of Tagitis. He had no previous brushes with the law or any record of overstepping the bounds of any trust regarding money entrusted to him; no student of the IDB scholarship program ever came forward to complain that he or she did not get his or her stipend. The CA also found no basis for the police theory that Tagitis was "trying to escape from the clutches of his second wife," on the basis of the respondent’s testimony that Tagitis was a Muslim who could have many wives under the Muslim faith, and that there was "no issue" at all when the latter divorced his first wife in order to marry the second. Finally, the CA also ruled out kidnapping for ransom by the Abu Sayyaf or by the ARMM paramilitary as the cause for Tagitis’ disappearance, since the

respondent, the police and the military noted that there was no acknowledgement of Tagitis’ abduction or demand for payment of ransom – the usual modus operandi of these terrorist groups. Based on these considerations, the CA thus extended the privilege of the writ to Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane Pante, PNP Chief Avelino I. Razon, Task Force Tagitis heads Gen. Joel Goltiao and Col. Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert extraordinary diligence and efforts to protect the life, liberty and security of Tagitis, with the obligation to provide monthly reports of their actions to the CA. At the same time, the CA dismissed the petition against the then respondents from the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael, based on the finding that it was PNP-CIDG, not the military, that was involved. On March 31, 2008, the petitioners moved to reconsider the CA decision, but the CA denied the motion in its Resolution of April 9, 2008. ISSUE: Whether or not the privilege of the Writ of Amparo should be extended to Engr. Morced Tagitis. RULING: The disappearance of Engr. Morced Tagitis is classified as an enforced disappearance, thus the privilege of the Writ of Amparo applies. Under the UN Declaration enforced disappearance as "the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law." Under this definition, the elements that constitute enforced disappearance are essentially fourfold:

2

(a) arrest, detention, abduction or any form of deprivation of liberty; (b) carried out by agents of the State or persons or groups of persons acting with the authorization, support or acquiescence of the State; (c) followed by a refusal to acknowledge the detention, or a concealment of the fate of the disappeared person; (d) placement of the disappeared person outside the protection of the law. There was no direct evidence indicating how the victim actually disappeared. The direct evidence at hand only shows that Tagitis went out of the ASY Pension House after depositing his room key with the hotel desk and was never seen nor heard of again. The undisputed conclusion, however, from all concerned – the petitioner, Tagitis’ colleagues and even the police authorities – is that Tagistis disappeared under mysterious circumstances and was never seen again. A petition for the Writ of Amparo shall be signed and verified and shall allege, among others (in terms of the portions the petitioners cite): (c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits; (d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report;(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission. The framers of the Amparo Rule never intended Section 5(c) to be complete in every detail in stating the threatened or actual violation of a victim’s rights. As in any other initiatory pleading, the pleader must of course state the ultimate facts constituting the

cause of action, omitting the evidentiary details.76 In an Amparo petition, however, this requirement must be read in light of the nature and purpose of the proceeding, which addresses a situation of uncertainty; the petitioner may not be able to describe with certainty how the victim exactly disappeared, or who actually acted to kidnap, abduct or arrest him or her, or where the victim is detained, because these information may purposely be hidden or covered up by those who caused the disappearance. In this type of situation, to require the level of specificity, detail and precision that the petitioners apparently want to read into the Amparo Rule is to make this Rule a token gesture of judicial concern for violations of the constitutional rights to life, liberty and security. To read the Rules of Court requirement on pleadings while addressing the unique Amparo situation, the test in reading the petition should be to determine whether it contains the details available to the petitioner under the circumstances, while presenting a cause of action showing a violation of the victim’s rights to life, liberty and security through State or private party action. The petition should likewise be read in its totality, rather than in terms of its isolated component parts, to determine if the required elements – namely, of the disappearance, the State or private action, and the actual or threatened violations of the rights to life, liberty or security – are present. The properly pleaded ultimate facts within the pleader’s knowledge about Tagitis’ disappearance, the participation by agents of the State in this disappearance, the failure of the State to release Tagitis or to provide sufficient information about his whereabouts, as well as the actual violation of his right to liberty. Thus, the petition cannot be faulted for any failure in its statement of a cause of action. If a defect can at all be attributed to the petition, this defect is its lack of supporting affidavit, as required by Section 5(c) of the Amparo Rule. Owing to the summary nature of the proceedings for the writ and to facilitate the resolution of the petition, the Amparo Rule incorporated the requirement for supporting affidavits, with the annotation that these can be used

as the affiant’s direct testimony. This requirement, however, should not be read as an absolute one that necessarily leads to the dismissal of the petition if not strictly followed. Where, as in this case, the petitioner has substantially complied with the requirement by submitting a verified petition sufficiently detailing the facts relied upon, the strict need for the sworn statement that an affidavit represents is essentially fulfilled. We note that the failure to attach the required affidavits was fully cured when the respondent and her witness (Mrs. Talbin) personally testified in the CA hearings held on January 7 and 17 and February 18, 2008 to swear to and flesh out the allegations of the petition. Thus, even on this point, the petition cannot be faulted. The phenomenon of enforced disappearance arising from State action first attracted notice in Adolf Hitler’s Nact und Nebel Erlass or Night and Fog Decree of December 7, 1941. The Third Reich’s Night and Fog Program, a State policy, was directed at persons in occupied territories "endangering German security"; they were transported secretly to Germany where they disappeared without a trace. In order to maximize the desired intimidating effect, the policy prohibited government officials from providing information about the fate of these targeted persons. In the Philippines, enforced disappearances generally fall within the first two categories, and 855 cases were recorded during the period of martial law from 1972 until 1986. Of this number, 595 remained missing, 132 surfaced alive and 127 were found dead. During former President Corazon C. Aquino’s term, 820 people were reported to have disappeared and of these, 612 cases were documented. Of this number, 407 remain missing, 108 surfaced alive and 97 were found dead. The number of enforced disappearances dropped during former President Fidel V. Ramos’ term when only 87 cases were reported, while the threeyear term of former President Joseph E. Estrada yielded 58 reported cases. KARAPATAN, a local nongovernmental organization, reports that as of March 31, 2008, the records show that there were a total of 193 victims of enforced disappearance under incumbent President Gloria M. Arroyo’s administration. The Commission on Human Rights’ records show a

3

total of 636 verified cases of enforced disappearances from 1985 to 1993. Of this number, 406 remained missing, 92 surfaced alive, 62 were found dead, and 76 still have undetermined status.Currently, the United Nations Working Group on Enforced or Involuntary Disappearance reports 619 outstanding cases of enforced or involuntary disappearances covering the period December 1, 2007 to November 30, 2008. Under Philippine Law The Amparo Rule expressly provides that the "writ shall cover extralegal killings and enforced disappearances or threats thereof."We note that although the writ specifically covers "enforced disappearances," this concept is neither defined nor penalized in this jurisdiction. The records of the Supreme Court Committee on the Revision of Rules (Committee) reveal that the drafters of the Amparo Rule initially considered providing an elemental definition of the concept of enforced disappearance: Justice Puno stated that, “as the law now stands, extra-judicial killings and enforced disappearances in this jurisdiction are not crimes penalized separately from the component criminal acts undertaken to carry out these killings and enforced disappearances and are now penalized under the Revised Penal Code and special laws.” Although the Court’s power is strictly procedural and as such does not diminish, increase or modify substantive rights, the legal protection that the Court can provide can be very meaningful through the procedures it sets in addressing extrajudicial killings and enforced disappearances. The Court, through its procedural rules, can set the procedural standards and thereby directly compel the public authorities to act on actual or threatened violations of constitutional rights. To state the obvious, judicial intervention can make a difference – even if only procedurally – in a situation when the very same investigating public authorities may have had a hand in the threatened or actual violations of constitutional rights. The burden for the public authorities to discharge in these situations, under the Rule on the Writ of

Amparo, is twofold. The first is to ensure that all efforts at disclosure and investigation are undertaken under pain of indirect contempt from this Court when governmental efforts are less than what the individual situations require. The second is to address the disappearance, so that the life of the victim is preserved and his or her liberty and security restored. In these senses, our orders and directives relative to the writ are continuing efforts that are not truly terminated until the extrajudicial killing or enforced disappearance is fully addressed by the complete determination of the fate and the whereabouts of the victim, by the production of the disappeared person and the restoration of his or her liberty and security, and, in the proper case, by the commencement of criminal action against the guilty parties. During the International Convention for the Protection of All Persons from Enforced Disappearance (in Paris, France on February 6, 2007, "enforced disappearance" is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law. In the recent case of Pharmaceutical and Health Care Association of the Philippines v. Duque III, we held that: Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law. The right to security of person in this third sense is a corollary of the policy that the State "guarantees full respect for human rights" under Article II, Section 11

of the 1987 Constitution. As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat.

to escape the application of legal standards ensuring the victim’s human rights.

Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. The duty to investigate must be undertaken in a serious manner and not as a mere formality preordained to be ineffective.

The remedy of the writ of amparo provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings.

Evidentiary Difficulties Posed by the Unique Nature of an Enforced Disappearance The unique evidentiary difficulties presented by enforced disappearance cases; these difficulties form part of the setting that the implementation of the Amparo Rule shall encounter. These difficulties largely arise because the State itself – the party whose involvement is alleged – investigates enforced disappearances. Past experiences in other jurisdictions show that the evidentiary difficulties are generally threefold. First, there may be a deliberate concealment of the identities of the direct perpetrators. In addition, there are usually no witnesses to the crime; if there are, these witnesses are usually afraid to speak out publicly or to testify on the disappearance out of fear for their own lives. Second, deliberate concealment of pertinent evidence of the disappearance is a distinct possibility; the central piece of evidence in an enforced disappearance Third is the element of denial; in many cases, the State authorities deliberately deny that the enforced disappearance ever occurred. "Deniability" is central to the policy of enforced disappearances, as the absence of any proven disappearance makes it easier

4

Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

We note in this regard that the use of flexibility in the consideration of evidence is not at all novel in the Philippine legal system. In child abuse cases, Section 28 of the Rule on Examination of a Child Witness is expressly recognized as an exception to the hearsay rule. This Rule allows the admission of the hearsay testimony of a child describing any act or attempted act of sexual abuse in any criminal or non-criminal proceeding, subject to certain prerequisites and the right of cross-examination by the adverse party. CONCLUSIONS AND THE AMPARO REMEDY Based on these considerations, we conclude that Col. Kasim’s disclosure, made in an unguarded moment, unequivocally point to some government complicity in the disappearance. The consistent but unfounded denials and the haphazard investigations cannot but point to this conclusion. For why would the government and its officials engage in their chorus of concealment if the intent had not been to deny what they already knew of the disappearance? Would not an in-depth and thorough investigation that at least credibly determined the fate of Tagitis be a feather in the government’s cap under the circumstances of the disappearance? From this perspective, the evidence and developments, particularly the Kasim evidence,

already establish a concrete case of enforced disappearance that the Amparo Rule covers. From the prism of the UN Declaration, heretofore cited and quoted, evidence at hand and the developments in this case confirm the fact of the enforced disappearance and government complicity, under a background of consistent and unfounded government denials and haphazard handling. The disappearance as well effectively placed Tagitis outside the protection of the law – a situation that will subsist unless this Court acts. Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were remiss in their duties when the government completely failed to exercise the extral.' To fully enforce the Amparo remedy, we refer this case back to the CA for appropriate proceedings directed at the monitoring of the PNP and the PNPCIDG investigations and actions, and the validation of their results through hearings the CA may deem appropriate to conduct. 7.

marcosEDDIE GUAZON, JOSEFINA CABRERA, YOLANDA DACUNES, VIOLETA SEVILLA, QUERUBIN BILLONES, ESTELITA BILLONES, GORGONIA MACARAEG, LAUREANA JOAQUIN, CRESTITA LICUP, SOLIDAD ABURDO, ROSALINA VILLARDA, CONRADA HOBALANE, ERLINDA RESTORAN, VERIDIAN FLORA, ROSELA CONDE, SOSIMA COSTO, JOSEFINA ALDIANO, ROSALINA DOMINGO, ARESTIO YANGA, MILAGROS GONZALES, ESTRELITA ESTARES, BONIFACIA ANTIVO, PATRIA VALLES, ERLINDA LEE, MELANIO GAROFIL, ERIBERTO MATEO, FRANCISCO HORTILLANO, ANATALIA PESIMO, LOSENDO GARBO, VIRGINIA LORESTO, LYDIA ELA, RAFAEL VILLABRILLE, MA. RECHILDA SABALZA, EDITHA MAAMO, ELENIETA BANOSA, ALEXANDER LABADO, ANDREW GO, WYNEFREDO

REYES, ROSARIO SESPENE, ROSA MARTIN and JAIME BONGAT, petitioners, vs. MAJ. GEN. RENATO DE VILLA, BRIG. GEN. ALEXANDER AGUIRRE, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALFREDO LIM, and COL. JESUS GARCIA, respondents. G.R. No. 80508 January 30, 1990 Ponente: Gutierrez, J. FACTS Guazon and forty other petitioners, who of legal age, bona fide residents of Manila, and have a common or general interest in the preservation of the rule of law, question the conduct of military and police officers in conducting “Areal Target Zonings” or “Saturation Drives” in Manila. According to them, the police and military officers have a common pattern of human rights abuses stating that: 1) the police have no search warrant and warrant of arrest; 2) the raiders rouse residents by banging on the walls or windows and ordering the residents within to come out of their residence; 3) the residents are herded like cows and were stripped down half-naked and examined for tattoo marks; 4) the raiders ransacked their houses and that their money and valuable belongings have disappeared; 5) and that some arrested were detained without charges and that they were subject to physical and mental torture. The respondents stressed that they have legal authority to conduct saturation drives, and that the accusations of the petitioners are total lies. ISSUE/s of the CASE Whether the Saturation Drives violate the constitutional rights of the residents. ACTION OF THE COURT SC: The petition is DISMISSED. COURT RATIONALE ON THE ABOVE CASE No. Absent proper party/parties that are directly affected by the operation, the Court has no authority to pass upon the issue for it falls under the execution of the Executive and the RTCs. The Constitution grants the government the power to seek and cripple subversive movements. However, all police actions are governed by the limitation of the Bill of Rights. It is significant to point out that it is not police action per se which is impermissible and which should be

5

probited. Rather, it is the procedure used or the methods which offende even hardened sensibilities. In this case, not one of the several thousand persons treated in the illegal and inhuman manner appears as petitioner or as come before the trial court to present evidence. The Court believes it is highly probable that some violations were actually committed. But the remedy is not to stop all police actions, including the essential and legitimate ones. A show of force is sometimes necessary as long as the rights of the people are protected and not violated. Under the circumstances of this taxpayers’s suit, there is no erring soldier or policeman who can be prosecuted. As such absence of facts, no permanent relief can be given. SUPREME COURT RULING WHEREFORE, the petition is DISMISSED. 8.

Marcos v. Manglapus

Facts: Former President Ferdinand Marcos petitions the SC for mandamus and prohibition asking to order respondents to issue travel documents to him and his immediate family and to enjoin the implementation of the President "s decision to bar their return to the Philippines. Issue: WON the President may prohibit the Marcoses from returning to the Philippines, in the exercise of the powers granted in her by the Constitution.

Ruling: Affirmative. Although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of "executive power ". The powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. Whatever power inherent in the

government that is neither legislative nor judicial has to be executive. Even the members of the Legislature has recognized that indeed Mrs. Aquino has the power under the Constitution to bar the Marcoses from returning, as per House Resolution No. 1342. Marcos v Manglapus, et. al. Facts: Same as above, except that Ferdinand has died. Held: Among the duties of the President under the Constitution, in compliance with his (or her) oath of office, is to protect and promote the interest and welfare of the people. Her decision to bar the return of the Marcoses and subsequently, the remains of Mr. Marcos at the present time and under present circumstances is in compliance with this bounden duty. In the absence of a clear showing that she had acted with arbitrariness or with grave abuse of discretion in arriving at this decision, the Court will not enjoin the implementation of this decision. eMARCOS VS MANGLAPUS Facts: This case involves a petition of mandamus and prohibition asking the court to order the respondents Secretary of Foreign Affairs, etc. To issue a "travel documents "to former Pres. Marcos and the immediate members of his family and to enjoin the implementation of the President's decision to bar their return to the Philippines. Petitioners assert that the right of the Marcoses "to return "in the Philippines is guaranteed by "the Bill of Rights, specifically "Sections "1 and 6. They contended that Pres. Aquino is without power to impair the liberty of abode of the Marcoses because only a court may do so within the limits prescribed by law. Nor the President impair their right to travel because no law has authorized her to do so. They further assert that under "international law, their right "to return "to the Philippines is guaranteed particularly by the Universal Declaration of Human Rights and the International Covenant on "Civil "and

Political Rights, which has been ratified by the Philippines.

"and under our Constitution as part of the law of the land. "

Issue:

The court held that President did not act arbitrarily or with grave abuse of discretion in determining that the return of the Former Pres. Marcos and his family poses a serious threat to national interest and welfare. President Aquino has determined that the destabilization caused by the return of the Marcoses would wipe away the gains achieved during the past few years after the Marcos regime.

"Whether or not, in the exercise of the powers granted by "the constitution, the President (Aquino) may prohibit the Marcoses from returning to the Philippines. Held: "It must be emphasized that the individual right involved is not the right to "travel from "the Philippines to other countries or within the Philippines. These are what the right to travel would normally connote. Essentially, the right involved in this case at bar is the right "to return "to one's country, a distinct right under "international law, independent from although related to the right to travel. Thus, the Universal Declaration of Human Rights and the International Covenant on "Civil "and Political Rights treat the right to freedom of "movement "and abode within the territory of a state, the right to leave the country, and the right to enter one's country as separate and distinct rights. What the Declaration speaks of is the "right to freedom of "movement "and residence within the borders of each state". On the other hand, the Covenant guarantees the right to liberty of "movement "and freedom to choose his residence and the right to be free to leave any country, including his own. Such rights may only be restricted by laws protecting the "national security, public order, "public health "or morals or the separate rights of others. However, right to enter one's country cannot be arbitrarily deprived. It would be therefore inappropriate to construe the limitations to the right "to return "to ones country in the same context as those pertaining to the liberty of abode and the right to travel. The Bill of rights "treats only the liberty of abode and the right to travel, but it is a well considered view that the right "to return "may be considered, as a generally accepted principle of "International Law

6

The return of the Marcoses poses a serious threat and therefore prohibiting their return to the Philippines, the instant petition is hereby DISMISSED.

Clyde E. Tan 2011-17748 9.

Enrile v. Sandiganbayan

Facts :On June 5, 2014 Senator Juan Ponce Enrile was charged by the Office of the Ombudsman with plunder in the Sandiganbayan on the basis of his purported involvement in the diversion and misuse of appropriations under the Priority Development Assistance Fund (PDAF). The case is apetition for certiorari to annul the decision of the Sandiganbayan denying his Motion to fix bail and Motion for Reconsideration on the following grounds: (a) The prosecution failed to show conclusively that Enrile, if ever convicted, is punishable by reclusion perpetua; (b) The prosecution failed to show that evidence of Enrile’s guilt is strong; (c) Enrile is not a flight risk. Issue :Whether or not Enrile can bail -YES Ruling :1.The purpose of the bail is to guarantee the appearance of the accused at the trial.2.It is the

Philippine’s responsibility in the international community under the Universal Declaration of Human Rights “….of protecting and promoting the right of every person to liberty and due process…under the obligation to make available to every person underdetention such remedies which safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail”. 3.Enrile is not a flight risk because of his social and political standing and his having immediately surrendered to the authorities upon being charged in court.4.The currently fragile state of Enrile’s health is a compelling justification for his admission to bail. (Chronic hypertension, diffuse atherosclerotic cardiovascular disease, Atrial and Ventricular Arrhythmia, etc. 10. PEOPLE VS CASIO (G.R. NO. 211465 DECEMBER 3, 2014) People of the Philippines vs Casio G.R. No. 211465 December 3, 2014

Facts: On May 2, 2008, International Justice Mission (IJM), a nongovernmental organization, coordinated with the police in order to entrap persons engaged in human trafficking in Cebu City. Chief PSI George Ylanan, SPO1 Felomino Mendaros, SPO1 Fe Altubar, PO1 Albert Luardo, and PO1 Roy Carlo Veloso composed the team of police operatives, Luardo and Veloso were designated as decoys, pretending to be tour guides looking for girls to entertain their guests. IJM provided them with marked money, which was recorded in the police blotter. The team went to Queensland Motel and rented adjacent Rooms 24 and 25. Room 24 was designated for the transaction while Room 25 was for the rest of the police team. PO1 Luardo and PO1 Veloso proceeded to D. Jakosalem Street in Barangay Kamagayan, Cebu City’s red light district where the accused noticed them and called their attention. Negotiation occured and upon the

signal, the accused was arrested and the two minors were taken into custody by the DSWD officials. Issue: Whether or not accused is liable for trafficking of persons.

exploitation or when the adoption is induced by any form of consideration for exploitative purposes shall also be considered as ‘trafficking in persons’ even if it does not involve any of the means set forth in the preceding paragraph.”

Held: Yes. Under Republic Act No. 10364, the elements of trafficking in persons have been expanded to include the following acts:

Accused is further guilty of qualified trafficking. SEC. 6. Qualified Trafficking in Persons.— The following are considered as qualified trafficking:

(1) The act of “recruitment, obtaining, hiring, providing, offering, transportation, transfer, maintaining, harboring, or receipt of persons with or without the victim’s consent or knowledge, within or across national borders;”

When the trafficked person is a child;

(2) The means used include “by means of threat, or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person” (3) The purpose of trafficking includes “the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs”

The Court of Appeals found that AAA and BBB were recruited by accused when their services were peddled to the police who acted as decoys. AAA was a child at the time that accused peddled her services.66 to work as a prostitute because she needed money. AAA also stated that she agreed Accused took advantage of AAA’s vulnerability as a child and as one who need money, as proven by the testimonies of the witnesses. Knowledge or consent of the minor is not a defense under Republic Act No. 9208. “The recruitment, transportation, transfer, harboring, adoption or receipt of a child for the purpose of

7

When the adoption is effected through Republic Act No. 8043, otherwise known as the “Inter-Country Adoption Act of 1995” and said adoption is for the purpose of prostitution, pornography, sexual exploitation,forced labor, slavery, involuntary servitude or debt bondage; 11. Garcia vs. J. Drilon and Garcia, G. R. No. 179267, 25 June 2013 Nature of the Case: Petition for Review of Republic Act (R.A.) 9262 Facts: Private respondent Rosalie filed a petition before the RTC of Bacolod City a Temporary Protection Order against her husband, Jesus, pursuant to R.A. 9262, entitled “An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other Purposes.” She claimed to be a victim of physical, emotional, psychological and economic violence, being threatened of deprivation of custody of her children and of financial support and also a victim of marital infidelity on the part of petitioner. The TPO was granted but the petitioner failed to faithfully comply with the conditions set forth by the said TPO, private-respondent filed another application for the issuance of a TPO ex parte. The trial court issued a modified TPO and extended the same when petitioner failed to comment on why the TPO should not be modified. After the given time allowance to answer, the petitioner no longer submitted the

required comment as it would be an “axercise in futility.” Petitioner filed before the CA a petition for prohibition with prayer for injunction and TRO on, questioning the constitutionality of the RA 9262 for violating the due process and equal protection clauses, and the validity of the modified TPO for being “an unwanted product of an invalid law.” The CA issued a TRO on the enforcement of the TPO but however, denied the petition for failure to raise the issue of constitutionality in his pleadings before the trial court and the petition for prohibition to annul protection orders issued by the trial court constituted collateral attack on said law. Petitioner filed a motion for reconsideration but was denied. Thus, this petition is filed.

Issues: WON the CA erred in dismissing the petition on the theory that the issue of constitutionality was not raised at the earliest opportunity and that the petition constitutes a collateral attack on the validity of the law. WON the CA committed serious error in failing to conclude that RA 9262 is discriminatory, unjust and violative of the equal protection clause. WON the CA committed grave mistake in not finding that RA 9262 runs counter to the due process clause of the Constitution WON the CA erred in not finding that the law does violence to the policy of the state to protect the family as a basic social institution WON the CA seriously erredin declaring RA 9262 as invalid and unconstitutional because it allows an undue delegation of judicial power to Brgy. Officials. Decision: 1. Petitioner contends that the RTC has limited authority and jurisdiction, inadequate to tackle the complex issue of constitutionality. Family

Courts have authority and jurisdiction to consider the constitutionality of a statute. The question of constitutionality must be raised at the earliest possible time so that if not raised in the pleadings, it may not be raised in the trial and if not raised in the trial court, it may not be considered in appeal. 2. RA 9262 does not violate the guaranty of equal protection of the laws. Equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. In Victoriano v. Elizalde Rope Workerkers’ Union, the Court ruled that all that is required of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real differences; that it must be germane to the purpose of the law; not limited to existing conditions only; and apply equally to each member of the class. Therefore, RA9262 is based on a valid classification and did not violate the equal protection clause by favouring women over men as victims of violence and abuse to whom the Senate extends its protection. 3. RA 9262 is not violative of the due process clause of the Constitution. The essence of due process is in the reasonable opportunity to be heard and submit any evidence one may have in support of one’s defense. The grant of the TPO exparte cannot be impugned as violative of the right to due process. 4. The non-referral of a VAWC case to a mediator is justified. Petitioner’s contention that by not allowing mediation, the law violated the policy of the State to protect and strengthen the family as a basic autonomous social institution cannot be sustained. In a memorandum of the Court, it ruled that the court shall not refer the case or any issue therof to a mediator. This is so because violence is not a subject for compromise. 5. There is no undue delegation of judicial power to Barangay officials. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and

8

enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on any part of any branch of the Government while executive power is the power to enforce and administer the laws. The preliminary investigation conducted by the prosecutor is an executive, not a judicial, function. The same holds true with the issuance of BPO. Assistance by Brgy. Officials and other law enforcement agencies is consistent with their duty executive function. The petition for review on certiorari is denied for lack of merit.

12. Human Rights Law Case Digest: Philippine Blooming Mills Employment Organization V. Philippine Blooming Mills Co. (1973) G.R. No. L-31195 June 5, 1973 Lessons Applicable: Nature and Definition of Human Rights, Human Right is superior to property rights, Social justice, jurisdiction over violation of constitutional right

third shifts (6am-2pm, 7am-4pm. and 8am-5pm respectively) • March 3, 1969: Philippine Blooming Mills held 2 meetings in the morning and afternoon where PBMEO confirmed the demonstration which has nothing to do with the Company because the union has no quarrel or dispute with Management. That Management, thru Atty. C.S. de Leon, Company personnel manager, informed PBMEO that the demonstration is an inalienable right of the union guaranteed by the Constitution but emphasized, however, that any demonstration for that matter should not unduly prejudice the normal operation thus whoever fails to report for work the following morning shall be dismissed for violation of the existing CBA Article XXIV: NO LOCKOUT — NO STRIKE amounting to an illegal strike • March 3, 1969 9:50 am: Wilfredo Ariston, adviser of PBMEO sent a cablegram to the Company: REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING DEMONSTRATION MARCH 4, 1969

Laws Applicable: Bill of Rights on rights of free expression, rights of free assembly and rights of petition

• The Company filed for violation of the CBA. PBMEO answered that there is no violation since they gave prior notice. Moreover, it was not a mass demonstration for strike against the company.

FACTS:

• Judge Joaquin M. Salvador: PBMEO guilty of bargaining in bad faith and PBMEO officers directly responsible for ULP losing their status as employees

• March 2, 1969: Philippine Blooming Mills discovered that Philippine Blooming Mills Employees Organization (PBMEO) decided to stage a mass demonstration as a valid exercise of their constitutional right of freedom expression in general and of their right of assembly and petition for redress of grievances in particular before appropriate governmental agency, the Chief Executive, alleged abuses of the police officers of the municipality of Pasig at Malacañang on March 4, 1969 to be participated in by the workers in the first, second and

• September 29, 1969: PBMEO motion for reconsideration – dismissed since 2 days late ISSUE: 1. W/N to regard the demonstration against police officers, not against the employer, as evidence of bad faith in collective bargaining and hence a violation of the collective bargaining agreement and a cause for the dismissal from employment of the demonstrating employees, stretches unduly the compass of the

collective bargaining agreement, is an inhibition of the rights of free expression, free assembly and petition HELD: YES. Set aside as null and void the orders of CFI and reinstate the petitioners. • In a democracy, the preservation and enhancement of the dignity and worth of the human personality is the central core as well as the cardinal article of faith of our civilization. The inviolable character of man as an individual must be "protected to the largest possible extent in his thoughts and in his beliefs as the citadel of his person • The Bill of Rights is designed to preserve the ideals of liberty, equality and security "against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of those who have no patience with general principles. • The freedoms of expression and of assembly as well as the right to petition are included among the immunities reserved by the sovereign people • The rights of free expression, free assembly and petition, are not only civil rights but also political rights essential to man's enjoyment of his life, to his happiness and to his full and complete fulfillment. Thru these freedoms the citizens can participate not merely in the periodic establishment of the government through their suffrage but also in the administration of public affairs as well as in the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to the appropriate governmental officers or agencies for redress and protection as well as for the imposition of the lawful sanctions on erring public officers and employees. • While the Bill of Rights also protects property rights, the primacy of human rights over property rights is recognized. o Property and property rights can be lost thru prescription; but human rights are imprescriptible.

9

o a constitutional or valid infringement of human rights requires a more stringent criterion, namely existence of a grave and immediate danger of a substantive evil which the State has the right to prevent o Rationale: Material loss can be repaired or adequately compensated. The debasement of the human being broken in morale and brutalized in spirit-can never be fully evaluated in monetary terms. The wounds fester and the scars remain to humiliate him to his dying day, even as he cries in anguish for retribution, denial of which is like rubbing salt on bruised tissues. o injunction would be trenching upon the freedom expression of the workers, even if it legally appears to be illegal picketing or strike • The pretension of their employer that it would suffer loss or damage by reason of the absence of its employees from 6 o'clock in the morning to 2 o'clock in the afternoon, is a plea for the preservation merely of their property rights. o There was a lack of human understanding or compassion on the part of the firm in rejecting the request of the Union for excuse from work for the day shifts in order to carry out its mass demonstration. And to regard as a ground for dismissal the mass demonstration held against the Pasig police, not against the company, is gross vindictiveness on the part of the employer, which is as unchristian as it is unconstitutional. o The most that could happen to them was to lose a day's wage by reason of their absence from work on the day of the demonstration. One day's pay means much to a laborer, more especially if he has a family to support. Yet, they were willing to forego their oneday salary hoping that their demonstration would bring about the desired relief from police abuses. But management was adamant in refusing to recognize the superior legitimacy of their right of free speech, free assembly and the right to petition for redress.

o the dismissal for proceeding with the demonstration and consequently being absent from work, constitutes a denial of social justice likewise assured by the fundamental law to these lowly employees. Section 5 of Article II of the Constitution imposes upon the State "the promotion of social justice to insure the well-being and economic security of all of the people," which guarantee is emphasized by the other directive in Section 6 of Article XIV of the Constitution that "the State shall afford protection to labor ...". Under the Industrial Peace Act, the Court of Industrial Relations is enjoined to effect the policy of the law "to eliminate the causes of industrial unrest by encouraging and protecting the exercise by employees of their right to self-organization for the purpose of collective bargaining and for the promotion of their moral, social and economic well-being." • The respondent company is the one guilty of unfair labor practice defined in Section 4(a-1) in relation to Section 3 of Republic Act No. 875, otherwise known as the Industrial Peace Act. Section 3 of Republic Act No. 8 guarantees to the employees the right "to engage in concert activities for ... mutual aid or protection"; while Section 4(a-1) regards as an unfair labor practice for an employer interfere with, restrain or coerce employees in the exercise their rights guaranteed in Section Three." • violation of a constitutional right divests the court of jurisdiction. Relief from a criminal conviction secured at the sacrifice of constitutional liberties, may be obtained through habeas corpus proceedings even long after the finality of the judgment. There is no time limit to the exercise of the freedoms. The right to enjoy them is not exhausted by the delivery of one speech, the printing of one article or the staging of one demonstration. It is a continuing immunity to be invoked and exercised when exigent and expedient whenever there are errors to be rectified, abuses to be denounced, inhumanities to be condemned. Otherwise these guarantees in the Bill of Rights would be vitiated by rule on procedure prescribing the period for appeal. The battle then would be reduced

to a race for time. And in such a contest between an employer and its laborer, the latter eventually loses because he cannot employ the best an dedicated counsel who can defend his interest with the required diligence and zeal, bereft as he is of the financial resources with which to pay for competent legal services • enforcement of the basic human freedoms sheltered no less by the organic law, is a most compelling reason to deny application of a Court of Industrial Relations rule which impinges on such human rights. It is an accepted principle that the Supreme Court has the inherent power to "suspend its own rules or to except a particular case from its operation, whenever the purposes of justice require."

13. INTERNATIONAL SCHOOL ALLIANCE OF EDUCATORS VS QUISUMBING (2000) 4 Feb 2018 INTERNATIONAL SCHOOL ALLIANCE OF EDUCATORS (ISAE) vs. HON. LEONARDO A. QUISUMBING as the Secretary of Labor and Employment; HON. CRESENCIANO B. TRAJANO as the Acting Secretary of Labor and Employment; DR. BRIAN MACCAULEY as the Superintendent of International School-Manila; and INTERNATIONAL SCHOOL, INC. [G.R. No. 128845; June 1, 2000] Constitutional Law| Equal Protection Clause FACTS: Private respondent International School, Inc. is a domestic educational institution established primarily for dependents of foreign diplomatic personnel and other temporary residents. To enable the School to continue carrying out its educational program and improve its standard of instruction, the School hires

10

both foreign and local teachers as members of its faculty, classifying the same into two: (1) foreignhires and (2) local-hires. The School grants foreign-hires certain benefits not accorded local-hires. These include housing, transportation, shipping costs, taxes, and home leave travel allowance. Foreign-hires are also paid a salary rate twenty-five percent (25%) more than local-hires. Petitioner claims that the point-of-hire classification employed by the School is discriminatory to Filipinos and that the grant of higher salaries to foreign-hires constitutes racial discrimination. ISSUE: Whether there is indeed a discrimination thus a violation of Equal Protection Clause. HELD: Public policy abhors inequality and discrimination. The Constitution directs the State to promote “equality of employment opportunities for all.” Similarly, the Labor Code provides that the State shall “ensure equal work opportunities regardless of sex, race or creed.” Discrimination, particularly in terms of wages, is frowned upon by the Labor Code. Article 135, for example, prohibits and penalizes the payment of lesser compensation to a female employee as against a male employee for work of equal value. Article 248 declares it an unfair labor practice for an employer to discriminate in regard to wages in order to encourage or discourage membership in any labor organization. The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of “equal pay for equal work.” Persons who work with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should be paid similar salaries. This rule applies to the School, its “international character” notwithstanding. In this case, employees should be given equal pay for work of equal value. That is a principle long honored in this jurisdiction. That is a principle that rests on

fundamental notions of justice. That is the principle we uphold today.

14. BAYAN MUNA VS. ROMULO MARCH 30, 2013 ~ VBDIAZ Bayan Muna vs Romulo G. R. No. 159618, February 01, 2011

Facts:

Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the period material to this case. Respondent Alberto Romulo was impleaded in his capacity as then Executive Secretary.

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome Statute establishing the International Criminal Court (ICC) with “the power to exercise its jurisdiction over persons for the most serious crimes of international concern x x x and shall be complementary to the national criminal jurisdictions.” The serious crimes adverted to cover those considered grave under international law, such as genocide, crimes against humanity, war crimes, and crimes of aggression.

On December 28, 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the Rome Statute

which, by its terms, is “subject to ratification, acceptance or approval” by the signatory states. As of the filing of the instant petition, only 92 out of the 139 signatory countries appear to have completed the ratification, approval and concurrence process. The Philippines is not among the 92. RP-US Non-Surrender Agreement On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement (Agreement, hereinafter) between the USA and the RP. Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under the US Embassy Note adverted to and put in effect the Agreement with the US government. In esse, the Agreement aims to protect what it refers to and defines as “persons” of the RP and US from frivolous and harassment suits that might be brought against them in international tribunals.8 It is reflective of the increasing pace of the strategic security and defense partnership between the two countries. As of May 2, 2003, similar bilateral agreements have been effected by and between the US and 33 other countries. The Agreement pertinently provides as follows: 1. For purposes of this Agreement, “persons” are current or former Government officials, employees (including contractors), or military personnel or nationals of one Party.

such tribunal has been established by the UN Security Council, or (b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for the purpose of surrender to or transfer to any international tribunal, unless such tribunal has been established by the UN Security Council. 3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a third country, the [US] will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of the Government of the Republic of the Philippines [GRP]. 4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third country, the [GRP] will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of the Government of the [US]. 5. This Agreement shall remain in force until one year after the date on which one party notifies the other of its intent to terminate the Agreement. The provisions of this Agreement shall continue to apply with respect to any act occurring, or any allegation arising, before the effective date of termination.

2. Persons of one Party present in the territory of the other shall not, absent the express consent of the first Party,

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the nonsurrender agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of diplomatic notes constituted a legally binding agreement under international law; and that, under US law, the said agreement did not require the advice and consent of the US Senate.

(a) be surrendered or transferred by any means to any international tribunal for any purpose, unless

In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and ratifying

11

the Agreement and prays that it be struck down as unconstitutional, or at least declared as without force and effect. Issue: Whether or not the RP-US NON SURRENDER AGREEMENT is void ab initio for contracting obligations that are either immoral or otherwise at variance with universally recognized principles of international law. Ruling: The petition is bereft of merit. Validity of the RP-US Non-Surrender Agreement Petitioner’s initial challenge against the Agreement relates to form, its threshold posture being that E/N BFO-028-03 cannot be a valid medium for concluding the Agreement. Petitioners’ contention––perhaps taken unaware of certain well-recognized international doctrines, practices, and jargons––is untenable. One of these is the doctrine of incorporation, as expressed in Section 2, Article II of the Constitution, wherein the Philippines adopts the generally accepted principles of international law and international jurisprudence as part of the law of the land and adheres to the policy of peace, cooperation, and amity with all nations. An exchange of notes falls “into the category of intergovernmental agreements,” which is an internationally accepted form of international agreement. The United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows: An “exchange of notes” is a record of a routine agreement, that has many similarities with the private law contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. The signatories of the letters may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy

procedure, or, sometimes, to avoid the process of legislative approval. In another perspective, the terms “exchange of notes” and “executive agreements” have been used interchangeably, exchange of notes being considered a form of executive agreement that becomes binding through executive action. On the other hand, executive agreements concluded by the President “sometimes take the form of exchange of notes and at other times that of more formal documents denominated ‘agreements’ or ‘protocols.’” As former US High Commissioner to the Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement Acts: The point where ordinary correspondence between this and other governments ends and agreements – whether denominated executive agreements or exchange of notes or otherwise – begin, may sometimes be difficult of ready ascertainment. x x x It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the Non-Surrender Agreement itself, or as an integral instrument of acceptance thereof or as consent to be bound––is a recognized mode of concluding a legally binding international written contract among nations. Agreement Not Immoral/Not at Variance with Principles of International Law Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations and/or being at variance with allegedly universally recognized principles of international law. The immoral aspect proceeds from the fact that the Agreement, as petitioner would put it, “leaves criminals immune from responsibility for unimaginable atrocities that deeply shock the conscience of humanity; x x x it precludes our country from delivering an American criminal to the [ICC] x x x.”63 The above argument is a kind of recycling of petitioner’s earlier position, which, as already

12

discussed, contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the process undermined its treaty obligations under the Rome Statute, contrary to international law principles. The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly described by the Solicitor General, “is an assertion by the Philippines of its desire to try and punish crimes under its national law. x x x The agreement is a recognition of the primacy and competence of the country’s judiciary to try offenses under its national criminal laws and dispense justice fairly and judiciously.” Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos and Americans committing high crimes of international concern to escape criminal trial and punishment. This is manifestly incorrect. Persons who may have committed acts penalized under the Rome Statute can be prosecuted and punished in the Philippines or in the US; or with the consent of the RP or the US, before the ICC, assuming, for the nonce, that all the formalities necessary to bind both countries to the Rome Statute have been met. For perspective, what the Agreement contextually prohibits is the surrender by either party of individuals to international tribunals, like the ICC, without the consent of the other party, which may desire to prosecute the crime under its existing laws. With the view we take of things, there is nothing immoral or violative of international law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered criminal by both Philippine laws and the Rome Statute.

15. ANG LADLAD VS. COMELEC Facts:

Petitioner is a national organization which represents the lesbians, gays, bisexuals, and trans-genders. It filed a petition for accreditation as a party-list organization to public respondent. However, due to moral grounds, the latter denied the said petition. To buttress their denial, COMELEC cited certain biblical and quranic passages in their decision. It also stated that since their ways are immoral and contrary to public policy, they are considered nuissance. In fact, their acts are even punishable under the Revised Penal Code in its Article 201. A motion for reconsideration being denied, Petitioner filed this instant Petition on Certiorari under Rule 65 of the ROC. Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma, violated the constitutional guarantees against the establishment of religion. Petitioner also claimed that the Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech and assembly, and equal protection of laws, as well as constituted violations of the Philippines’ international obligations against discrimination based on sexual orientation. In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national political agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also argued for the first time that the LGBT sector is not among the sectors enumerated by the Constitution and RA 7941, and that petitioner made untruthful statements in its petition when it alleged its national existence contrary to actual verification reports by COMELEC’s field personnel. Issue: WON Respondent violated the Non-establishment clause of the Constitution; WON Respondent erred in denying Petitioners application on moral and legal grounds.

Held: Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals) may be registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, “the enumeration of marginalized and under-represented sectors is not exclusive”. The crucial element is not whether a sector is specifically enumerated, but whether a particular organization complies with the requirements of the Constitution and RA 7941. Our Constitution provides in Article III, Section 5 that “[n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.” At bottom, what our non-establishment clause calls for is “government neutrality in religious matters.” Clearly, “governmental reliance on religious justification is inconsistent with this policy of neutrality.” We thus find that it was grave violation of the nonestablishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad. Be it noted that government action must have a secular purpose. Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is required for the youth. Neither has the COMELEC condescended to justify its position that petitioner’s admission into the party-list system would be so harmful as to irreparably damage the moral fabric of society. We also find the COMELEC’s reference to purported violations of our penal and civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as “any act, omission, establishment, condition of property, or anything else which shocks, defies, or disregards decency or

13

morality,” the remedies for which are a prosecution under the Revised Penal Code or any local ordinance, a civil action, or abatement without judicial proceedings. A violation of Article 201 of the Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a criminal conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not proof, and a mere blanket invocation of public morals cannot replace the institution of civil or criminal proceedings and a judicial determination of liability or culpability. As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlad’s registration on purely moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool to further any substantial public interest. TOPIC: right to informational privacy, writ of habeas data 16. RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID SUZARA, Petitioners v. ST. THERESA’S COLLEGE, MYLENE RHEZA T. ESCUDERO, and JOHN DOES, Respondents. PONENTE: Velasco, Jr. PREFATORY: The individual’s desire for privacy is never absolute, since participation in society is an equally powerful desire. Thus each individual is continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and communication of himself to others, in light of the environmental conditions and social norms set by the society in which he lives. – Alan Westin, Privacy and Freedom (1967)

FACTS: Julia and Julienne, both minors, were graduating high school students at St. Theresa’s College (STC), Cebu City. Sometime in January 2012, while changing into their swimsuits for a beach party they were about to attend, Julia and Julienne, along with several others, took digital pictures of themselves clad only in their undergarments. These pictures were then uploaded by Angela on her Facebook profile. At STC, Mylene Escudero, a computer teacher at STC’s high school department, learned from her students that some seniors at STC posted pictures online, depicting themselves from the waist up, dressed only in brassieres. Escudero then asked her students if they knew who the girls in the photos are. In turn, they readily identified Julia and Julienne, among others. Using STC’s computers, Escudero’s students logged in to their respective personal Facebook accounts and showed her photos of the identified students, which include: (a) Julia and Julienne drinking hard liquor and smoking cigarettes inside a bar; and (b) Julia and Julienne along the streets of Cebu wearing articles of clothing that show virtually the entirety of their black brassieres. Also, Escudero’s students claimed that there were times when access to or the availability of the identified students’ photos was not confined to the girls’ Facebook friends, but were, in fact, viewable by any Facebook user. Investigation ensued. Then Julia, Julienne and other students involved were barred from joining the commencement exercises. Petitioners, who are the respective parents of the minors, filed a Petition for the Issuance of a Writ of Habeas Data. RTC dismissed the petition for habeas data on the following grounds: Petitioners failed to prove the existence of an actual or threatened violation of the minors’ right to privacy,

one of the preconditions for the issuance of the writ of habeas data.

designed to safeguard individual freedom from abuse in the information age.”

The photos, having been uploaded on Facebook without restrictions as to who may view them, lost their privacy in some way.

Issuance of writ of habeas data; requirements

STC gathered the photographs through legal means and for a legal purpose, that is, the implementation of the school’s policies and rules on discipline. ISSUE: Whether or not there was indeed an actual or threatened violation of the right to privacy in the life, liberty, or security of the minors involved in this case. (Is there a right to informational privacy in online social network activities of its users?) HELD: (Note that you can skip the preliminary discussions and check the ruling at the latter part) Nature of Writ of Habeas Data It is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. It is an independent and summary remedy designed to protect the image, privacy, honor, information, and freedom of information of an individual, and to provide a forum to enforce one’s right to the truth and to informational privacy. It seeks to protect a person’s right to control information regarding oneself, particularly in instances in which such information is being collected through unlawful means in order to achieve unlawful ends. In developing the writ of habeas data, the Court aimed to protect an individual’s right to informational privacy, among others. A comparative law scholar has, in fact, defined habeas data as “a procedure

14

The existence of a person’s right to informational privacy An actual or threatened violation of the right to privacy in life, liberty or security of the victim (proven by at least substantial evidence) Note that the writ will not issue on the basis merely of an alleged unauthorized access to information about a person. The writ of habeas data is not only confined to cases of extralegal killings and enforced disappearances The writ of habeas data can be availed of as an independent remedy to enforce one’s right to privacy, more specifically the right to informational privacy. The remedies against the violation of such right can include the updating, rectification, suppression or destruction of the database or information or files in possession or in control of respondents. Clearly then, the privilege of the Writ of Habeas Data may also be availed of in cases outside of extralegal killings and enforced disappearances. Meaning of “engaged” in the gathering, collecting or storing of data or information Habeas data is a protection against unlawful acts or omissions of public officials and of private individuals or entities engaged in gathering, collecting, or storing data about the aggrieved party and his or her correspondences, or about his or her family. Such individual or entity need not be in the business of collecting or storing data. To “engage” in something is different from undertaking a business endeavour. To “engage” means “to do or take part in something.” It does not necessarily mean that the activity must be done in pursuit of a business. What matters is that the person

or entity must be gathering, collecting or storing said data or information about the aggrieved party or his or her family. Whether such undertaking carries the element of regularity, as when one pursues a business, and is in the nature of a personal endeavour, for any other reason or even for no reason at all, is immaterial and such will not prevent the writ from getting to said person or entity. As such, the writ of habeas data may be issued against a school like STC. Right to informational privacy Right to informational privacy is the right of individuals to control information about themselves. Several commentators regarding privacy and social networking sites, however, all agree that given the millions of OSN users, “in this Social Networking environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.” So the underlying question now is: Up to what extent is the right to privacy protected in OSNs? Facebook Privacy Tools To address concerns about privacy, but without defeating its purpose, Facebook was armed with different privacy tools designed to regulate the accessibility of a user’s profile as well as information uploaded by the user. In H v. W, the South Gauteng High Court recognized this ability of the users to “customize their privacy settings,” but did so with this caveat: “Facebook states in its policies that, although it makes every effort to protect a user’s information, these privacy settings are not foolproof.” For instance, a Facebook user can regulate the visibility and accessibility of digital images (photos), posted on his or her personal bulletin or “wall,” except for the user’s profile picture and ID, by selecting his or her desired privacy setting: Public – the default setting; every Facebook user can view the photo;

Friends of Friends – only the user’s Facebook friends and their friends can view the photo;

viewable either by (1) their Facebook friends, or (2) by the public at large.

No privacy invasion by STC; fault lies with the friends of minors

Friends – only the user’s Facebook friends can view the photo;

Considering that the default setting for Facebook posts is “Public,” it can be surmised that the photographs in question were viewable to everyone on Facebook, absent any proof that petitioners’ children positively limited the disclosure of the photograph. If such were the case, they cannot invoke the protection attached to the right to informational privacy.

Respondent STC can hardly be taken to task for the perceived privacy invasion since it was the minors’ Facebook friends who showed the pictures to Tigol. Respondents were mere recipients of what were posted. They did not resort to any unlawful means of gathering the information as it was voluntarily given to them by persons who had legitimate access to the said posts. Clearly, the fault, if any, lies with the friends of the minors. Curiously enough, however, neither the minors nor their parents imputed any violation of privacy against the students who showed the images to Escudero.

Custom – the photo is made visible only to particular friends and/or networks of the Facebook user; and Only Me – the digital image can be viewed only by the user. The foregoing are privacy tools, available to Facebook users, designed to set up barriers to broaden or limit the visibility of his or her specific profile content, statuses, and photos, among others, from another user’s point of view. In other words, Facebook extends its users an avenue to make the availability of their Facebook activities reflect their choice as to “when and to what extent to disclose facts about themselves – and to put others in the position of receiving such confidences.” LONE ISSUE: NONE. The Supreme Court held that STC did not violate petitioners’ daughters’ right to privacy as the subject digital photos were viewable either by the minors’ Facebook friends, or by the public at large. Without any evidence to corroborate the minors’ statement that the images were visible only to the five of them, and without their challenging Escudero’s claim that the other students were able to view the photos, their statements are, at best, self-serving, thus deserving scant consideration. It is well to note that not one of petitioners disputed Escudero’s sworn account that her students, who are the minors’ Facebook “friends,” showed her the photos using their own Facebook accounts. This only goes to show that no special means to be able to view the allegedly private posts were ever resorted to by Escudero’s students, and that it is reasonable to assume, therefore, that the photos were, in reality,

15

US v. Gines-Perez: A person who places a photograph on the Internet precisely intends to forsake and renounce all privacy rights to such imagery, particularly under circumstances such as here, where the Defendant did not employ protective measures or devices that would have controlled access to the Web page or the photograph itself. United States v. Maxwell: The more open the method of transmission is, the less privacy one can reasonably expect. Messages sent to the public at large in the chat room or e-mail that is forwarded from correspondent to correspondent loses any semblance of privacy. The Honorable Supreme Court continued and held that setting a post’s or profile detail’s privacy to “Friends” is no assurance that it can no longer be viewed by another user who is not Facebook friends with the source of the content. The user’s own Facebook friend can share said content or tag his or her own Facebook friend thereto, regardless of whether the user tagged by the latter is Facebook friends or not with the former. Also, when the post is shared or when a person is tagged, the respective Facebook friends of the person who shared the post or who was tagged can view the post, the privacy setting of which was set at “Friends.” Thus, it is suggested, that a profile, or even a post, with visibility set at “Friends Only” cannot easily, more so automatically, be said to be “very private,” contrary to petitioners’ argument.

Different scenario of setting is set on “Me Only” or “Custom” Had it been proved that the access to the pictures posted were limited to the original uploader, through the “Me Only” privacy setting, or that the user’s contact list has been 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. 17. of Hongkong v. Olalia, 521 SCRA 470 (2007) posted in CONLAW2 cases Facts Private respondent Muñoz was charged before Hong Kong Court. Warrants of arrest were issued and by virtue of a final decree the validity of the Order of Arrest was upheld. The petitioner Hong Kong Administrative Region filed a petition for the extradition of the private respondent. In the same case, a petition for bail was filed by the private respondent.

The petition for bail was denied by reason that there was no Philippine law granting the same in extradition cases and that the respondent was a high “flight risk”. Private respondent filed a motion for reconsideration and was granted by the respondent judge subject to the following conditions: 1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that he will appear and answer the issues raised in these proceedings and will at all times hold himself amenable to orders and processes of this Court, will further appear for judgment. If accused fails in this undertaking, the cash bond will be forfeited in favor of the government; 2. Accused must surrender his valid passport to this Court; 3. The Department of Justice is given immediate notice and discretion of filing its own motion for hold departure order before this Court even in extradition proceeding; and 4. Accused is required to report to the government prosecutors handling this case or if they so desire to the nearest office, at any time and day of the week; and if they further desire, manifest before this Court to require that all the assets of accused, real and personal, be filed with this Court soonest, with the condition that if the accused flees from his undertaking, said assets be forfeited in favor of the government and that the corresponding lien/annotation be noted therein accordingly. Petitioner filed a motion to vacate the said order but was denied by the respondent judge. Hence, this instant petition. Issue WON a potential extraditee is entitled to post bail Ruling A potential extraditee is entitled to bail.

16

Ratio Decidendi Petitioner alleged that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in admitting private respondent to bail; that there is nothing in the Constitution or statutory law providing that a potential extraditee has a right to bail, the right being limited solely to criminal proceedings. On the other hand, private respondent maintained that the right to bail guaranteed under the Bill of Rights extends to a prospective extraditee; and that extradition is a harsh process resulting in a prolonged deprivation of one’s liberty. In this case, the Court reviewed what was held in Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo GR No. 153675 April 2007, that the constitutional provision on bail does not apply to extradition proceedings, the same being available only in criminal proceedings. The Court took cognizance of the following trends in international law: (1) the growing importance of the individual person in public international (2) the higher value now being given to human rights; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other. In light of the recent developments in international law, where emphasis is given to the worth of the individual and the sanctity of human rights, the Court departed from the ruling in Purganan, and held that an extraditee may be allowed to post bail.

18. Human Rights Law Case Digest: Mejoff V. Director Of Prisons (1951) G.R. No. L-4254

September 26, 1951

Lessons Applicable: characteristics of human rights, constitutional guarantee that no person shall be deprived of liberty without due process of law, Laws Applicable: Bill of Rights FACTS: Boris Mejoff, an alien of Russian descent who was brought to this country from Shanghai as a secret operative by the Japanese forces during the latter's regime in these Islands. (The petitioner's entry into the Philippines was not unlawful; he was brought by the armed and belligerent forces of a de facto government whose decrees were law furing the occupation.) He was arrested on March 18, 1948 as a Japanese spy, by U. S. Army Counter Intelligence Corps. and later there was an order for his release. But on April 5, 1948, the Board of Commissioners of Immigration declared that Mejoff had entered the Philippines illegally in 1944 and ordered that he be deported on the first available transportation to Russia. He was transferred to Cebu Provincial Jail and then Bilibid Prison at Muntinlupa on October, 1948. He then filed a petition for writ of habeas corpus on the basis that too long a detention may justify the issuance of a writ of habeas corpus - denied Over two years having elapsed since the decision aforesaid was promulgated, the Government has not found way and means of removing the petitioner out of the country, and none are in sight, although it should be said in justice to the deportation

authorities, it was through no fault of theirs that no ship or country would take the petitioner. This is his 2nd petition for writ of habeas corpus ISSUE: W/N the writ of habeas corpus should be granted since he was detained longer than a reasonable time HELD: YES. writ will issue commanding the respondents to release the petitioner from custody upon these terms: The petitioner shall be placed under the surveillance of the immigration authorities or their agents in such form and manner as may be deemed adequate to insure that he keep peace and be available when the Government is ready to deport him. The surveillance shall be reasonable and the question of reasonableness shall be submitted to this Court or to the Court of First Instance of Manila for decision in case of abuse. He shall also put up a bond for the above purpose in the amount of P5,000 with sufficient surety or sureties, which bond the Commissioner of Immigration is authorized to exact by section 40 of Commonwealth Act No. 613. Aliens illegally staying in the Philippines have no right of asylum therein even if they are "stateless," which the petitioner claims to be. The protection against deprivation of liberty without due process of law and except for crimes committed against the laws of the land is not limited to Philippine citizens but extends to all residents, except enemy aliens, regardless of nationality. Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally accepted principles of international law as part of the law of Nation." And in a resolution entitled "Universal Declaration of Human Rights" and approved by the General Assembly of the United Nations of which the Philippines is a member, at its plenary meeting on December 10, 1948, the right to life and liberty and all other fundamental rights as applied to all human beings were proclaimed. It was there resolved that

17

"All human beings are born free and equal in degree and rights" (Art. 1); that "Everyone is entitled to all the rights and freedom set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, nationality or social origin, property, birth, or other status" (Art. 2): that "Every one has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law" (Art. 8); that "No one shall be subjected to arbitrary arrest, detention or exile" (Art. 9); etc. petitioner's unduly prolonged detention would be unwarranted by law and the Constitution, if the only purpose of the detention be to eliminate a danger that is by no means actual, present, or uncontrollable Imprisonment to protect society from predicted but unconsummated offenses is so unprecedented in this country and so fraught with danger of excesses and injustice that I am loath to resort it, even as a discretionary judicial technique to supplement conviction of such offenses as those of which defendants stand convicted. If that case is not comparable with ours on the issues presented, its underlying principle is of universal application. As already noted, not only are there no charges pending against the petitioner, but the prospects of bringing any against him are slim and remote.