HUMAN RIGHTS LAW

ART. 2, SEC. 14. The State recognizes the role of women in nation-building, and
August 18, 2018
shall ensure the fundamental ​equality before the law of women and men​​.
For this meeting, Judge Aguinaldo went over Articles 2, 13, and 14 of the Constitution,
with some comments in between.

ART. 2, SEC. 16. The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of
nature.
● As society progresses, rights are born. An example is the right to a balanced and
healthful ecology in accord with the rhythm and harmony of nature under the
1987 Constitution. Nobody ever thought of that human right 50 years ago.
● The Philippines has one of the fastest growing populations in the world. As the
population increases, the issues on human rights also increase.
ART. 14, SEC. 1. The State shall protect and promote the right of all citizens to
quality education at all levels and shall take appropriate steps to make such
education accessible to all.
● In Asia, except for New Zealand and Australia, the Philippines is number one
when it comes to equality between the sexes. It can be explained by our
unwritten history, which includes legends, myths, and traditions. An example
would be the Legend of Malakas and Maganda.
● In India, it is the woman who delivers dowry to the man. If the woman cannot
deliver dowry to the family of the man, she is burned to death.
● In Pakistan, Bangladesh, and some parts of India, there is such a thing called
honor killings. If the woman marries somebody outside of the social class, the
family of the woman would kill both the woman and the man.
● In Saudi Arabia, women just recently enjoyed the luxury of being allowed to
drive cars.
● In Kuwait, there is a beauty vlogger who still believes that women are slaves.
She believes that when Filipinas go to Kuwait, the family may confiscate their
passports and not allow them to go outside.
COMMISSION ON HUMAN RIGHTS
ART. 13, SEC. 17. (1) There is hereby created an ​independent office called the
Commission on Human Rights.

● The functions of the government are either constituent or ministerial. When we

say constituent functions, these are functions that the government cannot do
● The Commission on Human Rights is toothless.
without. Under the 1987 Constitution, there is no such thing as a ministerial
● From the very beginning, the Commission on Human Rights already lost its
function anymore.
independence, because it is the President who appoints commissioners.
● In the 1935 constitution, education was merely a ministerial function. In the
1973 Constitution, education became a constituent function. In the 1987
Constitution, it became the right to ​quality​​ education.
● You demand this right from the government, not the private sector. If you stage
a rally in front of UST, you are barking at the wrong tree, because UST is a
private institution. However, if you are in UP, then you can demand that right.

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ART. 13, SEC. 17. (2) The Commission shall be composed of a Chairman and four ART. 13, SEC. 18. (3) Provide appropriate legal measures for the protection of
Members who must be natural-born citizens of the Philippines and a majority of human rights of all persons within the Philippines, as well as Filipinos residing
whom shall be members of the Bar. The term of office and other ​qualifications abroad​​, and provide for ​preventive measures and legal aid services to the
and disabilities of the Members of the Commission shall be provided by law. underprivileged whose human rights have been violated or need protection;

● There is no hard and fast rule when it comes to qualification. Just like in the
appointment of people in the judiciary, there is a shortlist. If the president does ● There are many Filipinos who are victimized when they go abroad because they
not like the shortlist, he will return it to the JBC, so that the JBC will include who don't know the culture in the place.
the president wants. ● There is a Commission on Filipinos Overseas. The problem here is that if you go
● Majority shall be members of the bar. They should know what they are doing. there, they will just give you a lecture. They are too mechanical.
● Suggestions:
ART. 13, SEC. 18. The Commission on Human Rights shall have the following o The CHR can make recommendations to OFWs.
o The CHR can tie up with the DFA.
powers and functions:
(1) ​Investigate​​, on its own or on complaint by any party, all forms of human rights
ART. 13, SEC. 18. (4) Exercise visitorial powers over ​jails, prisons, or detention
violations involving civil and political rights;
facilities​​;

● They can only investigate. They do not have the power to prosecute. The only
● Our current jails are the same jails we had 20 or 30 years ago, at the time when
one who has the power to prosecute is the prosecutor or the fiscal.
the population of this country was only 50 million. Instead of rehabilitating, our
prisons make them hardened criminals.
ART. 13, SEC. 18. (2) Adopt its operational guidelines and rules of procedure, and ● Suggestion: The CHR can issue a recommendation for the construction of
cite for contempt for violations thereof in accordance with the Rules of Court; additional jails.
ART. 13, SEC. 18. (5) Establish a ​continuing program of research, education, and
information to enhance respect for the primacy of human rights;
● The Commission on Human Rights is found in UP.
●

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ART. 13, SEC. 18. (6) ​Recommend to the Congress effective measures to promote
human rights and to provide for compensation to victims of violations of human
rights, or their families;
ART. 13, SEC. 18. (7) Monitor the Philippine Government’s compliance with
international treaty obligations​​ on human rights;
● Examples are:
o United Nations Convention on the Rights of the Child
o Palermo Convention Against Human Trafficking
● Compared with other countries, we are better when it comes to compliance.
● The problem here is that the reason why Filipinos allow themselves to be
trafficked, i.e., poverty, has not been addressed properly.
ART. 13, SEC. 18. (9) ​Request the assistance of any department, bureau, office, or
agency in the performance of its functions;
ART. 13, SEC. 18. (10) ​Appoint its officers and employees in accordance with law;
and
ART. 13, SEC. 18. (11) Perform such ​other duties and functions as may be
provided by law.
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LEGAL RIGHTS vs. HUMAN RIGHTS
● The violation of a legal right is an actionable wrong only when there is a law
specifically providing the existence of such right. On the other hand, the
violation of a human right is an actionable wrong even if there is no law
specifically providing the existence of such right.
o Illustration: Before, a breach of promise to marry is not an actionable
wrong. Now, you may already file a case, because it may be considered
as psychological violence under Republic Act 9262, or the Anti-violence
Against Women and Children Act.
● Legal rights are demandable from a definite person, while human rights are
demandable from anybody.
August 25, 2018
Human Rights Overview
Human rights are not privileges. Human rights are not entitlements. Human rights are
not rights under positive law.
Rights under positive law
When we say positive law this is the law enacted by the legislature. Divine law, Natural
law and Positive law are different. A positive law is a law enacted by leg.
The Philippines is a civil law country. It means that there is no violation if when and when
there is no law defining your act to be violating the rights of your fellow men, there must
always be a law. Because of this law you can invoke your right. Since it is under the law,
there is always somebody who should respect your right.
That is why in the discussion of the right under positive law we speak of a ​consomatio?
​ hen we speak of consomatio, there is a right protected in favor of the one who
(1:15). W
is the holder of the law, and that right is addressed to somebody, and he should respect
your rights. If he violates your rights, the violation will be enforced by law.
Human Rights are not entitlements
When we say entitlement is different from human rights. When we say entitlement,
there is this thing which you believe that you are entitled to. If you believe that you are
not entitled, then there is no entitlement, but tin Human Rights, even if there you don’t
assert Human Rights, even if you don’t know Human Rights, it is always present.
 
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Example, those people who live below human dignity. If you ask them if they know
Human Rights, they don’t know anything, but they still have Human Rights. These rights
are supposed to be protected even if and when they don’t know anything about HR.
Human Rights are not privileges
When you say privileges, it is some kind of a demand that is just like an entitlement. For
example, you have the privilege to be educated, that was before. But now, privilege and
entitlement are viewed differently, because it is possible that these privileges and these
entitlements may graduate to HR, depending on the constitution.
Rights to Education
For example, Right to education. Under the 1935 Constitution, it was a mere privilege. It
was not written in the constitution. Then came the 1973 constitution. Right to education
became a part of Human Rights and in the 1987 constitution, right to education was
improved into right to QUALITY education.
Right to a Healthful Environment
While the same thing is true with right to a healthful environment. There are people who
don’t know ecology. So example, if you *inaudible* the reasons of why we are always
the victim of flood and etc. it is because of indiscriminate throwing of garbage on the
part of squatters, these are the informal settlers. In Pasig River, Monday meron naglilinis,
Tuesday wala na, and on Sunday, you can practically walk on water because of the
amount of garbage in the river. Well the question is, do they know that they have a right
to a healthful environment? So even if they don’t know their right, there’s this thing
called Human Rights. Right to a healthful ecology in accordance with the rhythm of
nature.
We have here, privileges. We have the privilege of going to these kinds of universities.
Privilege to Travel; Right to Mobility
The privilege to travel. It is a Human Rights because it is the right to mobility. On the
other hand, it is a privilege because, if you have criminal records, you cannot travel
outside the country or yung mga migrant workers or people from Mexico going to USA,
eto yung mga asylum seekers. They cannot demand Human Rights under the law
because they do not have the right to do so because of the very strict immigration policy,
so it was just a privilege. Well even in your case, you can’t just go to the USA and
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demand your Human Right to travel to the USA under the right to mobility, that is just a
mere privilege for the moment.
But many people who advocate free flow of population and claiming that it is part of
Human Rights, are those who are running away from an oppressive government. For
example, Venezuela, people there are migrating to Peru and Ecuador. The reason for
migration is the lack of economic security in Venezuela because of corrupt officials.
Well it is just like Philippines, which is rich in natural resources, Venezuela likewise has
the richest in natural resources in South America. Philippines has the best natural
resources, but if you compare with other south Asian countries, we are behind when it
comes to development because of corruption.
You compare the built-in human and natural resources. We all have the resources to be
connected with the whole world. We speak English and because of our education, but
the question is, why are we like this? We have here, our government officials are the no.
1 violators of human rights. The officials have the obligation to create the foundation and
atmosphere for Filipinos, they *inaudible* develop and protect human rights.
Commission on Human Rights
Well you remember our discussion on the Commission on Human Rights. That is
supposed to be the duty of the Commission. But the problem here even up to this day
we have never heard anything from the Commission. The only thing we heard from them
are the three lawyers na nangingialam sa raid ng bar. Walang problem, sa lawyer, they
don’t even want to identify themselves. Pumaosk lang sila, then tinanong kung sila, but
they don’t want to identify themselves, tapos nangingalam sila. Pag ikaw naman siguro
ang pulis, e magagalit ka. But of course, the owner of the bar has the right to be
protected by legal advisors. Ang problema, the owner of the bar did not even inform the
police conducting the raid that they have lawyers, and that these lawyers did not even
introduce themselves.
On the other hand, then, in accordance with the RPC, when conducting a raid, there
must at least be 2 witnesses of sufficient discretion. These witnesses may be from the r
bgy, owner or evenm lawyer, ut theses persons must be identified. They lack
communications perhaps, or maybe lack of knowledge on how to conduct a raid, but at
any rate, we are talking of Human Rights, it is not a mere privilege, it is not an
entitlement. Kasi ang entitlement, there must be a definite passive subject form whom
one can demand entitlement, well rights under the law are not Human Rights.
Human Rights are Rights in Rem
 
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Well you can say that entitlements, privileges, and rights under the law are already
included under HR, but Human Rights would not require a specific person to respect
their HR. in other words, it is just like right in rem, na kung sino diyan has an obligation to
respect the HR.
In oblicon, there is what we call, right in personam, there is a specific subject who is
supposed to respect our right, but here there is a right in rem, na kahit hindi mo kakilala
and hindi mo alam na may right ka, that person has the duty to respect your Human
Right.
We also mentioned Human Rights are evolving, we just don’t know what kind of
rights we have to day which will be formalized in the future. Like what I’ve said last
meeting, ‘yung 4 Ps na yan na may 5​th and 6​th Ps etc etc. Pero kung minsan dito, di ba
pwede nalang byaran nalang yung squatter na wag nalang magkalat, they can’t even do
that.
(story time about traffic and his travel from Muntinlupa to Manila.)
Privileges, Entitlements, etc graduating to Human Rights
Time will come, these people will demand that they be supported from our hard earned
taxes. We pay taxes, wala silang ginagwa tapos eto yung mga palalamunin natin yung
mga naghihintay lang ng mana from the government. At this time, that may become a
privilege on their part, but because of some constitutional provisions, it may graduate to
Human Rights. If it will happen, we have already created a culture of impunity, laziness
where people don’t want to work anymore, because they just want to be supported by
the government and they can’t even pay a single centavo for the maintenance of the
government; this is what happens to a country when the population increases.
Concept of Human Rights
Human Rights are something which can hardly be defined in accordance with it
standards, it has evolved. In our example regarding the rights to a healthful ecology in
accordance with the rhythm of nature. Kahit san mo hanapin yan, there is no such rights
in the ’35 an ’73 constitutions. The environmental law emanated from the Human Rights
under the 1987 constitution.
Human Rights Are Moral Principles
Moral principles are something based more than just positive law and we use the
term “moral principles” in accordance with our Judea-Christian influences and tradition.
The reason is, man is considered as rational being, in other words, we are moved by
rationality, by the way of faith in a positive manner. In other words, it goes to the basic
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principle of the Golden Rule. The rule is a general principle. If you don’t want these
things to happen to you, don’t do them to your fellowmen.
Moral Principles are not mere contractual obligations, but of course in the discussion
of positive law, what are the sources of obligation?
One is quasi-contract, bakit contact ang quasi-contract even if there is no meeting of the
minds? It is based on moral principles. Like solution indebiti and negotiorum gestio. Well,
there is actually meeting of the minds, the meeting of the minds therein is implied. It
goes back to the golden rule. Also, it is considered a contract because, had the roles been
reversed, the person benefited would have the obligation to return the thing to you and
vice versa.
Negotiorum gestio is just like saying paikipagkapwaan. For example, a person helped you
or your property while you were away, had the roles been reversed, you would be
helping him in his absence, thus considered a contract. The contract and meeting of the
mind is implied.
These are dictated by moral principles. It is something that is accepted by a right-thinking
individual.
Principles of *inaudible* Norms.
What are norms? Education is supposed to be the only means to transfer the values
of one generation to one generation. The same thing is true with HR. These are norms,
the way we perform things, would actually become the norm of our society, the norm of
our generation. To be followed by those persons who will view, see, follow the way we
do things. Well, unfortunately, the governmentt is the destructor of norms. For example,
not so long ago, parents or grandparents would give would lecture not necessarily oral,
but the way they do things for their grandchildren or children to follow. Pero ngayon, no
more opportunity for the parents to show their children the proper norms.
Why? Because we no longer see our parents and vice versa. The government destroyed
the bonding moment of the children with their parents. The heavy traffic deprives them
to see each other. Because of the strong policies of the government, we are deprived of
having a meaningful bonding experience with our parents and because of that, in what
way can our parents provide us with the norm which will become our standard? Well
even parents, they did not have the privilege of knowing the norm from their parents.
Yung mga witnesses and litigants in court no longer have manners in answering the
judge, they lack good behavior. The lawyers must instruct them how to answer
respectfully. Don’t say “yeah”, answer with “yes, your Honor” or “opo”.
Norms describe certain standards of human behavior. They are regularly protected as
legal rights. The problem is we have been consumed by the idea of a civil jurisdiction.
 
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That’s why we always say *inaudible* that I have violated his right etc, but we have here
GMRC.
Inalienability
The local and international laws are commonly understood are inalienable, that’s why
Human Rights, privileges, entitlements and rights under the positive law are inalienable.
Well just like the way we defined juridical capacity, it is the capacity to be the subject of
juridical relations. It really depends on how our positive municipal law defines when
Human Rights starts.
In the America, there is not definition when a person exists. That’s why in the case of Roe
vs. Wade, a fetus in the first tri-semester is not a person. That is why, the mother can
always go to a hospital for an abortion. Then in the second tri-semester, that is the time
where rights of the fetus will be extended to him because the abortion can only be done
in a recognized hospital. Pero in the last tri-semester, that is where the actual protection
is extended by law, because the mother cannot abort except for reasons that will affect
her life.
In the Philippines, the rights of the fetus starts for the moment of conception. Well that
is the way we define Human Rights, and that is the time when these actually would start.
Inherent Nature of Human Rights; Universality
So we have here, a person is inherently entitled to Human Rights simply because he or
she is a human being. It is inherent regardless of the nature and location, language ethnic
origin or other status, but the problem is the concept of universality of HR.
Is Human Right universal? Because there is no international government that would
impose the concept of Human Rights to all the countries in the World, the UN is actually
being questioned and the organs are also being challenged by different countries.
The UN is an organization based on voluntary adherence to the UN charter. Even if
voluntary there are actually benefits from membership therein. It was exemplified in
Switzerland, the latest country to join.
Universal, egalitarian, the rule of law, due process are actually the principles that
emanate from the concept of Human Rights.
*LOOK FOR THE HISTORY/BACKGROUND OF THE GOSPEL SONG, AMAZING GRACE*
In many countries in the world, just like Middle Eastern Arab Countries, their
economy is fueled by slaves.
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*Story about the beauty blogger and the participation of PH, as being the only non-Arab
country, to liberate Kuwait*
Indivisibility of Human Rights
This is an issue in most governments in the world. There are covenants in the UN
Declaration of Human Rights. Economic, Social and Cultural Right (EcoSoc Covenant), the
other one is the Covenant on Civil and Political Rights. The UNDHR would be meaningless
if and when there are no covenants that would make the rights therein very specific and
protected by government. It is just a mere throw of words without meaning unless and
until it is applicable. The laws are useless without IRR.
The rights would only be successful if it is implemented or respected in combination. The
question here is: If you have civil and political rights, would a political right, such as right
to vote, be enjoyed, if your stomach is empty? That is the condition in this country. It is
very democratic, but is there any foundation for that democratic tradition. It is basically
freedom, but can you enjoy freedom if you stomach is always empty? Is freedom merely
an icing on the cake of Human Rights? That is the reason why during election a lot of
officials are welcoming squatters in their territory.
The Philippines type of democracy was copied from the American type of Democracy,
but why is the later more successful? There are pre-conditions to a successful
democracy. One of them is economic stability because if there is economic stability
people would be free to exercise their right to choose. But if they don’t have freedom of
choice they can always be victimized, compelled, or threatened to do what powerful
people want them to do.
Justice system in the USA, judges are elected. Why is it that they judicial system and
jusrist system is working? Unlike the Philippines, if there is a very strong foundation for
democracy, which is economic stability, it would dissociate themselves from politics.
In the PH, people are so dependent on government benefits and on politics. In
comparison democracy in first-world countries are more successful. We cannot expect
responsibility from our own government officials because their decisions of the
Sandiganbayan take so long, more so if it reaches the SC. By the time the case is ended,
the official is probably dead. These are the problems we have in PH democracy.
For example, you have a strong economic foundation, but the problem is you don’t
control the policies of the government through your elective representatives. Investors
don’t like to invest in the Philippines because of the frequent changes in economic
policies. The people are the ones affected by this.
 
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The reason why corporation may only last until 50 years is the way the PH controls The government should do something because this has something to do with the
the corporations, otherwise, there might come a time when these corporations will be economic, social and cultural rights of the people. Same thing with civil and political
richer that the PH itself. rights. The illegal loggers would provide temporary job to the people, but what about the
Social Rights. The rights accorded to a person who is a member of society, a person long term effect on the environment and on the people (cultural minorities)? The
who is a member of an indigenous group. Cultural Rights include protection of cultural destruction of the environment, these are part of the rights that the government has to
heritage. What are those rights being guarded by our cultural monitories which made protect.
them survive up to the 21​st century? For example, the communal ownership of land. The Before, rights were viewed positively, but now these rights are presented in the
forest land as being considered as part of their heritage. negative. Freedom from fear. Freedom from hunger, freedom from want. Examples of
Civil and political rights​. Civil rights, the relationship among members of society. negative freedom.
Relationship between society and government. In what way can government deliver the
atmosphere where people would be able to enjoy rights? An example is the Continuing September 9, 2018
Mandamus, Writ of Amparo, and Writ of Habeas Data are not laws, they are circulars of
the SC, bc of the failure on the part of the Legislature to provide security to people who Extrajudicial Killings
are vested with an unreasonable and unlimited exercise of power from the executive - no law to define unlike murder or homicide
branch. They are based on the decisions of the SC and not on any laws. - victim killed due to political reason, ideology
Writ of Habeas Corpus is when a person is arrested and the court orders the arresting
person to bring the arrested to the court and explain the reason and grounds for arrest. UN Declaration on Human Rights
If you can explain, the court cannot do anything. However, in the Writ of Amparo the - Violations of Human Rights are not limited to a particular jurisdiction because of
court requires the arresting officer to disclose the whereabouts of the arrested person. International terrorism: International nature of the crime
The issue and problem involved in Writ of Habeas Data is when the arresting officer has - ex. drugs to finance international terrorism, migration and immigration, Rohingya
released the person arrested, but closely monitors his personal dealings and
whereabouts. Asylum seekers
These SC circulars protect the political and civil rights. - Philippines has long history of accepting them
SLAPP ​Example. For this one to be actualized, there are many LGU in cahoots with
national government offices, na nag-allow ng destruction of environment because of the Indefeasibility of Human Rights
issuance of permits to exploit natural resources or to cut down trees or illegal mining. - economic, social and cultural rights (22-28 UNDHR)
Unfortunately, the areas where the destruction of environment are considered as - civil and political rights (3-21 UNDHR)
communal land of cultural minorities. These people complain that their communal lands Universal Concept of Human Rights
are being destroyed and they staged rallies etc. - Criticism: Principle of sovereignty
Illegal miners and illegal loggers in cahoots with government officials or judges would
issue orders to arrest the cultural minorities. In order to procure a writ of mandamus, 3 Generations of Human Rights
you have to go to court. You can’t go to court unless you have a lawyer. The problem is 1. Civil and Political RIghts - life and political participation
the cultural minorities can’t find a lawyer in the provinces because the illegal loggers and 2. Economic, social and cultural rights - subsistence
miners already got the services of the lawyers in the place. Thus the cultural minorities 3. Solidarity rights - right to peace, right to clean environment
have no lawyers. The lawyers cannot refuse the illegal miners because it is a violation of
legal ethics. The leaders are killed. Prioritization of Human Rights

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7 core treaties
1. Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) (adopted 1979, entry into force: 1981)
- described as an international bill of rights for women
2, Convention on the Elimination of All Forms of Racial Discrimination (CERD) (adopted
1966, entry into force: 1969)
- third-generation human rights instrument, the Convention commits its members to
the elimination of racial discrimination and the promotion of understanding among
all races. Controversially, the Convention also requires its parties to outlaw hate
speech and criminalize membership in racist organizations
3. Convention on the Rights of Persons with Disabilities (CRPD) (adopted 2006, entry into
force: 2008)
- intended to protect the rights and dignity of persons with disabilities.
4. Convention on the Rights of the Child (CRC) (adopted 1989, entry into force: 1989)
- sets out the civil, political, economic, social, health and cultural rights of children.
- The Convention defines a child as any human being under the age of eighteen,
unless the age of majority is attained earlier under national legislation
- CHILD:
cannot protect themselves over 18 yrs old; any person less than 18 yrs old.
5. United Nations Convention Against Torture (CAT) (adopted 1984, entry into force:
1987)
- aims to prevent torture and other acts of cruel, inhuman, or degrading treatment or
punishment around the world.
6. International Convention on the Protection of the Rights of All Migrant Workers and
Members of their Families (ICRMW or more often MWC) (adopted 1990, entry into force:
2003)
- governing the protection of migrant workers and families
Customary International Law
- In addition to protection by international treaties, customary international law may
protect some human rights, such as the prohibition of torture, genocide and slavery
and the principle of non-discrimination
- problem: difference in customs among nations
Regional Human Rights Regime
- source: wikipedia
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- International human rights regimes are in several cases "nested" within more
comprehensive and overlapping regional agreements. These regional regimes can be
seen as relatively independently coherent human rights sub-regimes.[Three principal
regional human rights instruments can be identified; the African Charter on Human
and Peoples' Rights, the American Convention on Human Rights (the Americas) and
the European Convention on Human Rights. The European Convention on Human
Rights has since 1950 defined and guaranteed human rights and fundamental
freedoms in Europe. All 47 member states of the Council of Europe have signed the
Convention and are therefore under the jurisdiction of the European Court of Human
Rights in Strasbourg
September 22, 2018
o Human rights in connection with the United nations declarations of human rights
and those two covenants.
o You would see in here the very fluid concept of human rights. The international
courts to impeach duterte on crimes against humanity but of course there is no legal
binding ruling.
o In other words there is no global law enforcement agency that will impose the
penalty. The only penalty that can be imposed is maybe blockade or maybe
discrimination against the product of the republic of the Philippines and it will result
to widespread of unemployment, widespread discrimination and widespread failure
to respect the rights of Filipinos who would enter in other countries where the
decision is respected.
o So we have here the International People’s Tribunal, it is an unknown people’s
tribunal, this is also the place where sistefox(?) testified (Australian nun, around 87
yrs old), ano kaya ang gusto niya sa Pilipinas? Bakit kaya ayaw niyang umalis ng
Pilipinas? Well we have here, many Filipinos like to go to Australia. Nagpapakamatay
para makapunta sa Australia and here comes this sister who wants to stay in the
Philippines.
o Anyway, ang naisip ko lang ang kaso dito because she’s a Catholic nun. In countries
which are predominantly non-catholics there is nobody to take care of yung mga
matatandang pari and madre, they have to do everything for themselves. And in this
country which is predominantly catholic, they are actually served like royalties in the
 
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seminaries. Kaya minsan yung mga foreign priests and nuns stay here in the
Philippines. But that’s just my personal comment.
CRIMES AGAINST HUMANITY
o So we have here crimes against humanity, before an international tribunal like the
international courts of justice or like the international criminal court take cognizance
to a particular case, it must be proven that the legal system of the country of the
defendant is not working, or in other words, that is the number one reason for the
international criminal court to take jurisdiction but in the ph will u consider the
judicial system in this country not working?
o So you have there, a question: Do the laws in that country allow impunity later on,
the problem here is you cannot file a case against the President, while he is sitting as
the Pesident. Kapag natapos na yung term of office niya, yan tsaka pa lang kayo
mag-ffile ng case against him.
o But the question now here is if you file a case against President Duterte by the time
he finishes his term, how old will he be? And how long will the case filed against him
last it will be a protracted trial up to the time it reaches the Supreme Court, and by
the time it reaches the Supreme Court, syempre patay na siya.
INTERNATIONAL PEOPLE’S TRIBUNAL
o So we have here the decision against the international people’s tribunal there is no
way for this tribunal, or even the International Courts of Justice or even the
International Criminal Court, to implement or execute its decision the only thing
here is all the Filipinos shall be affected thereby. Our exports, for example, are not
accepted in those countries which adopts the decisions. And we also take into
account that presently we don’t speak anymore to country per country, we speak of
regional groupings already.
o That’s why the European community can easily criticize the president. European
community, these are most of the countries in Europe, except of course those
countries whose independence are recognized by the United Nations and the
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international community. The more stable countries in Europe are those members
of the European market and European community.
CRIMES AGAINST HUMANITY
o So we have here various crimes against humanity and war crimes against Filipinos on
a daily basis. What are those crimes against humanity, well there is actually no
definition for crimes against humanity but then again when we say crimes against
humanity, these are the crimes that cannot be accepted by the civilized community,
and would shock the sensibilities of people. You know this term from your crimnal
law 2, so for example, piracy is a crime against humanity or human trafficking.
o Human Trafficking the movie – watch this
EXTRAJUDICIAL KILLINGS
o What do we mean by extrajudicial killings? Yung executive order no. 35 is applicable
only to crimes which are not related to drugs. So when it comes to EJK involving
drugs, there is no law. The allegations brought by several militant groups include
gross and systematic violations of human rights particularly civil and political rights.
We’ll focus on EJK, massacre, arbitrary arrest and detention to torture, political
persecution, attacks, etc. and multiple rights violation arising from the imposition of
martial rule in Mindanao. When we speak of ejk, ​it is a systematic and
state-sponsored killing.
o What do we mean by state-sponsored? It is very hard to prove what a state
sponsored killing is but if we take into account international decisions, I will discuss
it later. State-sponsored, it does not necessarily mean that there is a policy. It is
enough that the government does not do anything to investigate and to prosecute.
In other words, it is not merely a case of there’s no consent but that there is an
approval. It is enough that the state is quiet on the EJK.
o Even in the so many cases decided by South America, if there is no action on the part
of the government to investigate or even to look for those killed through EJK or even
to look for their bodies, there is already a state-sponsored EJK.
 
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o In many cases in Mindanao; under the executive order no. 35 the government must
look for us, they must interview us because no normal person would go to the
military to complain about the military.
o So we have here, terrorist labeling. We do not know who are our enemies. Just like
in the US right now, there are so many groups enraging na di moa lam kung ano,
kung ano advocacy nila. In Europe, there is the muslimisation (?) of Europe, there
are muslims migrating to Europe.
o So anyway, destructive mining, you already know that, attacks on civilian
communities and people’s rights to national liberation. Ito yung problema dito sa
people’s rights to national liberation, di natin alam kung national liberation or
terrorism. So example is yung sa Mindanao, yung dalawang magkapatid na nag-start
ng away. They were radicalized, it is a question of radicalization when it comes to
socialization.
o Charges against the president and according to the international court which is not
recognized, the president is guilty. Well here we have another point to consider, this
was released yesterday from the Time magazine, 1.3 billion people live in poverty.
We are not talking here of the root causes, we are talking here of the effects in the
respect for human rights. We have here 5.5 billion, we have here the evolution of
human rights: right to self, right to education, right to living standard but basically
rights are already coated in the negative and this will be considered as freedom from
poverty.
MENTAL HEALTH
o One of the latest laws in the Philippines, the mental health law. We have here the
new kind of sickness which is recognized by the law, depression. We are all effected
of the environment, especially social media.
o Social media creates a very high standard to life. This was not yet recognized before
like in Japan.
o In 2014, World Health Organization held that depression is the predominant cause
of illness.
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RA 11036
o So we have here is Republic Act 11036, the Philippines reiterates its commitment to
the United Nations Declaration of Human Rights Convention and the rights of
persons with disabilities and of the relevant international and regional conventions
and declaration.
o It also recognizes the Magna Carta for Disabled Person under Republic Act 7277, I
just mentioned this because there was a pending case against Mocha and Drew. Kasi
pinahiya daw nila yung mga PWD, I don’t see any criminal act. Was there a criminal
act? Sakin wala, siguro meron if administratively.
MENTAL HEALTH
o The State commits itself to promoting the well-being people by assuring that mental
health conditions are treated and prevented timely, affordable, high-quality and
culturally appropriate mental health care. Culturally appropriate mental health, very
important. Free from coercion accountable to the services used, etc. etc.
o We have here also the law also mandates persons affected by mental health
conditions unable to exercise the full range of human rights and by work. There is a
difference between insanity and psychological incapacity.
o Human rights are evolving. The demands of a particular generation is different from
the past generation. For example, the right to a healthful ecology was not included
in the 1973 Constitution and now it is included in our present constitution. 1935
Constitution, education is just ministrant; in the 1973 Constitution, right to
education; in the 1987 Constitution, right to quality education. In order to give
meaning to the right to quality education is the law about the free tuition fee of
state universities.
o When we say human rights, these are actually matters that should not only be
extended to any person by means of the law but also matters that should be
respected by everybody regardless of whether it was demanded or not.
o Take note that in human rights, even though the person does not demand that the
right is respected, it is the obligation of the other person to respect it. Human rights
 
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are not causes of action. If there are persons that does not even know that they
have rights, how can they demand it?
o There was this girl, 10 y/o who was abused by her aunt. The girl was said to enjoy
the acts done to her. She does not know that her rights are violated. Some are so
poor that they don’t know that their rights are being violated. Even if no one is
demanding it, it must still be respected.
o There is a reason for depression and that is the deprivation of basic rights unlike in
most parts of the world depression may not necessarily come from the deprivation
of anything. It may come for other sources, it may be genetic, or failure to adjust to
a situation. In other words, resiliency is a very important factor in our way of life.
The cultural value in which these rights are supposed to be appreciated.
o EJK is always associated with the writ of amparo. Writ of Habeas Corpus, Writ of
Habeas data, and writ of amparo.
WRIT OF HABEAS CORPUS
o I mentioned these because of the recent decision of Paparan(?) due to the
appearance of two lady UP students. One of the questions right now is where is the
body.
o Writ of habeas corpus, order of the court requiring the jailer or the person detaining
another person to bring the body to the court and explain why that subject of the
writ cannot be released.
WRIT OF AMPARO
o Yung taong nakakulong nandun sa mismong respondent, hawak na hawak niya yung
tao. Yung respondent na yan sabi “wala na sa amin yan eh, dati nasa amin siya sa
city jail pero sinurrender na namin sa camp crame” kaya ang remedy dun is writ of
amparo. Ieexplain niya san niya binigay, bakit niya binigay at kanino nito binigay.
o Writ of amparo, it requires the person to explain how, when and where the person
was released.
WRIT OF HABEAS DATA
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o If for example the court finds that that person should not be detained and must be
released, pero nung ni-release naman palaging may nagmamanman at nakasunod.
Mag-cellphone siya, alam niyang may nakikinig or may natanggap na sulat pero
nakabukas na ang envelop.
o The remedy there is writ of habeas data.
WRIT OF HABEAS DATA
o EJK is generic and forced disappearance is specific.
o Pero take note arrest, detention, abduction or any other form of deprivation of
liberty by any agent of the state or by persons or groups of persons acting within the
authorization, support or acquiescence of the state followed by the deprivation of
liberty or by merely concealment, anyway you will learn this.
MAMBA VS BUENO (READ)
o This is the latest decision of the supreme court on this matter dahil siguro the case
of paparan will be appealed to the SC. There is EJK here.
2012 DECISION, NAVIA VS PARTICIO (TAKE NOTE OF THIS)
o The supreme court said that this is not a case of EJK. There’s no evidence to connect
the government with the EJK of the husband of Particio.
EJK
o There is no distinction between extrajudicial killings and the case of homicide or
murder as far as criminal law is concerned because we do not have any law that
would define murder due to EJK. EO 35, yan yung batas natin ng EJK pero according
dito sa International Tribunal that convicted Duterte. Sabi ni Duterte walang EJK kasi
wala naman tayong batas regarding that.
 
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September 29, 2018
There is no law defining EJK. It will just be an ordinary case of either murder or homicide.
EJK is not even an aggravating circumstance.
SC came up with writs to address EJK, enforced disappearances, torture, and other gross
violations of HR.
1. Writ of habeas corpus
● Golden Notes 2017: It is a writ directed to the person detaining
another and commanding him to produce the body of the prisoner at a
certain time and place with the day and the cause of his caption and
detention, to do, submit to and receive whatsoever, the court or judge
awarding the writ shall consider in that behalf. ​(Illusorio v. Bildner, G.R.
No. 139789, May 12, 2000)
● Judge Aguinaldo: If somebody questions an arrest, the arresting officer
must explain to the court why the arrest is valid. If the reason is not
valid, the court will order that the person detained be released.
2. Writ of amparo
● Golden Notes 2017: It is a remedy available to any person whose right
to life, liberty and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a private
individual or entity. The writ shall cover extralegal killings and enforced
disappearances or threats thereof. ​(Sec. 1, A.M. No. 07-9- 12-SC)
● Judge Aguinaldo: The arresting officer must search for that missing
person. If he cannot present the missing person, then he will be
charged with kidnapping and serious illegal detention.
o Palparan: Two UP students were arrested upon the orders
of Palparan. He was convicted of kidnapping and serious
illegal detention by a Bulacan RTC.
o Balao: James Balao, one of the founders of an indigenous
peoples’ movement in Cordillera, was picked up, allegedly
by government forces, in September 2008. Until now, he
has not been found. The government forces cannot be
charged with murder or homicide, because the body is
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nowhere to be found. The charge must be kidnapping and
serious illegal detention.
3. Writ of habeas data
● Golden Notes 2017: 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. ​(Sec. 1, A.M. No. 08-1-16-SC)
These writs are not laws. They are part of the Rules of Court enacted by the SC.
● Estipona: SC declared that a provision in RA 9165 prohibiting plea bargaining in
drug cases is unconstitutional. Plea bargaining is covered by procedural law,
which is within the prerogative of the SC.
FULL TRANSCRIPT
I assigned you the World Report for 2016 and 2017. You were able to compare both
reports. One of the things that were mentioned therein was extrajudicial killing.
Extrajudicial killing is a very controversial issue. It became more controversial yesterday,
when the President said that his only sin is extrajudicial killing.
There is another problem in here. There is no law defining extrajudicial killing. If there is
somebody who died because of extrajudicial killing, the charge would still be either
murder or homicide. However, the Supreme Court came up with different rules in order
to address extrajudicial killing, enforced disappearances, torture, and other gross
violations of human rights. These are the three great writs.
First is the writ of habeas corpus. The writ of habeas corpus is not a law. It is part of the
Rules of Court. The Rules of Court is enacted by the Supreme Court. Second is the writ of
amparo. Last is the writ of habeas data. These are the rules followed in case of
extrajudicial killings, enforced disappearances, torture, and gross violations of human
rights.
As I said, there is no crime known as extrajudicial killing. There is no crime known as
enforced disappearances. It will only be either homicide or murder. Even in homicide or
murder, there is no aggravating circumstance of extrajudicial killing. Extrajudicial killing
will just be treated as an ordinary crime under the Revised Penal Code.
 
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The writ of amparo and the writ of habeas corpus are very different. In a ​writ of habeas
corpus,​ a person is arrested. If somebody, including the person arrested, questions his
arrest or detention, it is the duty of the arresting officer to bring that detained person to
the authorities, particularly to the court, and to explain to the court why that person is
deprived of his liberty. If the reason is not valid, the court will order that the person
detained be released. That is writ of habeas corpus. Here, the person detaining another
person is known, identified, or identifiable.
The problem occurs if the arrestor says that the detainee is no longer with them, and
that even if you go to prison, the detainee will not be found, because he was already
released. For example, he was in the municipal jail, and he was transferred to Camp
Aguinaldo, Camp Crame, or Fort Bonifacio. When the relatives went there, the detainee
was not there. That may be considered as enforced disappearance. That is the subject of
writ of amparo.​
That is the case of Palparan. There were two UP students who were allegedly arrested
upon the orders of Palparan. A writ of habeas corpus was filed. They were not in
the place where they were detained. That's why a writ of amparo was filed. It was an
enforced disappearance. Can you consider that as EJK? No. In homicide or murder, there
must be a dead body. If there is no dead body, one is not able to prove the elements of
homicide or murder, as the case may be. That is why it goes to enforced disappearance.
When it comes to extrajudicial killing and enforced disappearance, an element is that the
one who made the enforced disappearance or extrajudicial killing must be the
government, government authorities, or government agents. According to the writ of
amparo, if and when the officer who arrested said that the detainee is not with them, it
is the duty on the part of the person who arrested to explain and to search for that
missing person. This is according to many decisions of the Supreme Court regarding the
writ of amparo. If he cannot present the missing person, then another case shall be filed
against him, and that is kidnapping and serious illegal detention. That is what happened
to Palparan. I don't know whether or not the Court of Appeals will affirm the decision of
the Regional Trial Court of Bulacan. If the CA affirms the decision of the Regional Trial
Court of Bulacan, it may even go to the Supreme Court. However, we have sufficient
jurisprudence already.
Those of you who are from Baguio may know the case of James Balao. James Balao was
one of the founders of an indigenous peoples’ movement in Cordillera. It's feared that he
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may have been the target of a political abduction by government forces. He was picked
up in September 2008, and until now, he has not been seen. Can the government forces
be charged with murder or homicide? No, because the body is nowhere to be found.
That will be questioned by the defense counsel. In homicide and murder, you have to
present the body of the one who died. Since the body cannot be found, the charge
becomes kidnapping and serious illegal detention.
What is writ of ​habeas data​? For example, somebody questioned the imprisonment of a
prisoner. The judge ordered the release of that person. However, even if he was
released, he is being followed wherever he goes. There's always someone conducting
surveillance of him. Someone taps his telephone conversations or opens his letters. This
is where the writ of habeas data comes in.
These are the different writs. These writs have different purposes. The writs are not
enacted by the legislature. These writs are enacted by the Supreme Court pursuant to its
power to issue procedural laws to enforce substantive laws.
Remember the case of Estipona. In drug cases, plea bargaining is not allowed. In plea
bargaining, the defendant may plead guilty to a lesser offense that is necessarily included
in the offense charged. For example, if you were charged with murder, you can plead
guilty to a lesser offense like homicide, but you can't plead guilty to slight physical
injuries, because someone died. If you were charged with serious physical injuries, you
can plead guilty to slight physical injuries. If you were charged with kidnapping and
serious illegal detention, you can plead guilty to simple kidnapping. However, under the
Republic Act 9165, if you were charged with a violation of Section 5, which is drug
pushing, plea bargaining is not allowed. There was a case that questioned this provision.
The Supreme Court said that the provision is unconstitutional, because it amounts to an
intrusion by the legislative to the Supreme Court’s prerogative of coming up with
procedural law. Plea bargaining is part of procedural law. Procedural law is basically the
Rules of Court. Procedural law is within the prerogative of the Supreme Court. The
definition of a crime, i.e., what crime is committed, is a legislative prerogative. The
manner by which the crime is prosecuted goes into the procedural aspect, and
procedure is within the prerogative of the Supreme Court. Plea bargaining is part of
procedural law. As to what crime is committed, that is a legislative prerogative. That is
the case in Estipona vs. Lobrigo. Lobrigo is a judge in Bicol.
 
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