(1) Carino vs.
Human Rights ISSUE: Whether or not the Commission on
FACTS: Some 800 public school teachers
undertook “mass concerted actions” to
protest the alleged failure of public
authorities to act upon their grievances. The
“mass actions” consisted in staying away
from their classes, converging at the
Liwasang Bonifacio, gathering in peacable
assemblies, etc. The Secretary of Education
served them with an order to return to work
within 24 hours or face dismissal. For failure
to heed the return-to-work order, eight
teachers at the Ramon Magsaysay High
School were administratively charged,
preventively suspended for 90 days pursuant
to sec. 41, P.D. 807 and temporarily
replaced. An investigation committee was
consequently formed to hear the charges.
When their motion for suspension was
denied by the Investigating Committee, said
teachers staged a walkout signifying their
intent to boycott the entire proceedings.
Eventually, Secretary Carino decreed
dismissal from service of Esber and the
suspension for 9 months of Babaran, Budoy
and del Castillo. In the meantime, a case
was filed with RTC, raising the issue of
violation of the right of the striking teachers
to due process of law. The case was
eventually elevated to SC. Also in the
meantime, the respondent teachers
submitted sworn statements to Commission
on Human Rights to complain that while they
were participating in peaceful mass actions,
they suddenly learned of their replacement
as teachers, allegedly without notice and
consequently for reasons completely
unknown to them.
While the case was pending with CHR, SC
promulgated its resolution over the cases
filed with it earlier, upholding the Sec.
Carino’s act of issuing the return-to-work
orders. Despite this, CHR continued hearing
its case and held that the “striking teachers”
“were denied due process of law;…they
should not have been replaced without a
chance to reply to the administrative
charges;” there had been violation of their
civil and political rights which the
Commission is empowered to investigate.”
Human Rights has jurisdiction or
adjudicatory powers over, or the power to
try and decide, or hear and determine,
certain specific type of cases, like alleged
human rights violations involving civil or
political rights
RULING: No. The Court declares the
Commission on Human Rights to have no
such power; and that it was not meant by
the fundamental law to be another court or
quasi-judicial agency in this country or
duplicate much less take over the functions
of the latter.
The most that may be conceded to the
Commission in the way of adjudicative power
is that it may investigate, i.e., receive
evidence and make findings of fact as
regards claimed human rights violations
involving civil and political rights. But fact
finding is not adjudication and cannot be
likened to the judicial function of a court of
justice, or even a quasi-judicial agency or
official. The function of receiving evidence
and ascertaining therefrom the facts of a
controversy is not a judicial function,
properly speaking. To be considered such,
the faculty of receiving evidence and making
factual conclusions in a controversy must be
accompanied by the authority of applying the
law to those factual conclusions to the end
that the controversy may be decided or
determined authoritatively, finally and
definitively, subject to such appeals or
modes of review as may be provided by law.
This function, to repeat, the Commission
does not have.
The Constitution clearly and categorically
grants to the Commission the power to
investigate all forms of human rights
violations involving civil and political rights.
It can exercise that power on its own
initiative or on complaint of any person. It
may exercise that power pursuant to such
rules of procedure as it may adopt and, in
cases of violations of said rules, cite for
contempt in accordance with the Rules of
Court. In the course of any investigation
conducted by it or under its authority, it may
grant immunity from prosecution to any
person whose testimony or whose
possession of documents or other evidence is
necessary or convenient to determine the
truth. It may also request the assistance of
any department, bureau, office, or agency in
the performance of its functions, in the
conduct of its investigation or in extending
such remedy as may be required by its
findings.
But it cannot try and decide cases (or hear
and determine causes) as courts of justice,
or even quasi-judicial bodies do. To
investigate is not to adjudicate or adjudge.
Whether in the popular or the technical
sense, these terms have well understood and
quite distinct meanings.
"Investigate," commonly understood, means
to examine, explore, inquire or delve or
probe into, research on, study. The
dictionary definition of "investigate" is "to
observe or study closely: inquire into
systematically. "to search or inquire into: . . .
to subject to an official probe . . .: to
conduct an official inquiry." The purpose of
investigation, of course, is to discover, to
find out, to learn, obtain information.
Nowhere included or intimated is the notion
of settling, deciding or resolving a DECS, their human rights, or civil or political
controversy involved in the facts inquired
into by application of the law to the facts
established by the inquiry.
The legal meaning of "investigate" is
essentially the same: "(t)o follow up step by
step by patient inquiry or observation. To
trace or track; to search into; to examine
and inquire into with care and accuracy; to
find out by careful inquisition; examination;
the taking of evidence; a legal inquiry;" "to
inquire; to make an investigation,"
"investigation" being in turn describe as
"(a)n administrative function, the exercise of
which ordinarily does not require a hearing.
2 Am J2d Adm L Sec. 257; . . . an inquiry,
judicial or otherwise, for the discovery and
collection of facts concerning a certain
matter or matters."
"Adjudicate," commonly or popularly
understood, means to adjudge, arbitrate,
judge, decide, determine, resolve, rule on,
settle. The dictionary defines the term as "to
settle finally (the rights and duties of the
parties to a court case) on the merits of
issues raised: . . . to pass judgment on:
settle judicially: . . . act as judge." And
"adjudge" means "to decide or rule upon as
a judge or with judicial or quasi-judicial
powers: "to award or grant judicially in a
case of controversy."
In the legal sense, "adjudicate" means: "To
settle in the exercise of judicial authority. To
determine finally. Synonymous with adjudge
in its strictest sense;" and "adjudge" means:
"To pass on judicially, to decide, settle or
decree, or to sentence or condemn. Implies
a judicial determination of a fact, and the
entry of a judgment."
Hence it is that the Commission on Human
Rights, having merely the power "to
investigate," cannot and should not "try and
resolve on the merits" (adjudicate) the
matters involved in Striking Teachers HRC
Case No. 90-775, as it has announced it
means to do; and it cannot do so even if
there be a claim that in the administrative
disciplinary proceedings against the teachers
in question, initiated and conducted by the
rights had been transgressed. More
particularly, the Commission has no power to
"resolve on the merits" the question of (a)
whether or not the mass concerted actions
engaged in by the teachers constitute and
are prohibited or otherwise restricted by law;
(b) whether or not the act of carrying on and
taking part in those actions, and the failure
of the teachers to discontinue those actions,
and return to their classes despite the order
to this effect by the Secretary of Education,
constitute infractions of relevant rules and
regulations warranting administrative
disciplinary sanctions, or are justified by the
grievances complained of by them; and (c)
what where the particular acts done by each
individual teacher and what sanctions, if any,
may properly be imposed for said acts or
omissions.
These are matters within the original
jurisdiction of the Sec. of Education, being
within the scope of the disciplinary powers
granted to him under the Civil Service Law,
and also, within the appellate jurisdiction of
the CSC.

RATIO: In the legal sense, "adjudicate"

means: "To settle in the exercise of judicial
authority. To determine finally. Synonymous
with adjudge in its strictest sense;" and
"adjudge" means: "To pass on judicially, to
decide, settle or decree, or to sentence or
condemn. Implies a judicial determination of
a fact, and the entry of a judgment."
(2) Ang Ladlad LGBT Party 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 non-establishment 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 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.
(3) In Re Yamashita, US Supreme Court
FACTS
After World War II, Japanese General
Tomoyuki Yamashita was tried before a U.S.
military tribunal in Manilla for war crimes
committed by troops under his command.
-U.S. claimed that D failed to discharge his
duty as a commander to control the
operations of the members of his command,
allowing them to commit brutal atrocities
and other high crimes against the U.S. and
allies and was in violation of laws of war.
ISSUE
Does the law of war impose upon an army
commander to take appropriate measures to
control his troops for prevention of violations
of the law of war which are likely to attend
occupation of hostile territory, and whether
he may be charged with personal
responsibility for the failure to take such
measures when violations result?
HOLDING
There is an affirmative duty to take such
measures as were in his power and
appropriate in the circumstances to protect
prisoners of war and civilians.
DISCUSSION
Purpose of the law is to protect civilians and
prisoners of war from brutality.
Fourth Hague Convention of 1907: Armed
force must be commanded by a person
responsible for his subordinates.
In re Yamashita was an appeal to
the Supreme Court of the United
States by Tomiyuki Yamashita, a general of
the Imperial Japanese Army convicted of war
crimes by a U.S. military tribunal
in Manila. [1] It argued that his trial by
military commission was inappropriate,
and Douglas MacArthur had exercised
excessive command influence and tainted
the proceedings. The Court did not examine
the specific issues of the case, only its
jurisdiction.
He was executed after the appeal was
rejected 7-2. Yamashita himself was not
directly accused of atrocities, and it was
agreed that he took steps to prevent them,
but he either could not communicate with
subordinates or they disobeyed his orders.
Precedents in the lower court case, dealing
with command responsibility, remain an
issue today.
While the International Military Tribunal
(Nuremberg) rejected defenses based on
superior orders relieving subordinates from
committing war crimes, this case dealt with
the opposite situation: the responsibility of a
superior officer ordering his
subordinates not to commit crimes, but
having them do so regardless of his orders.
It was agreed, in the tribunal, that
Yamashita had poor communications with his
units and no ability to control them
physically.
Background
One of the best-known cases
involving command responsibility, the
specific example of which being called
the Yamashita Doctrine, refers to the 1945
prosecution and eventual execution of Gen.
Yamashita.[2] It is widely accepted that
Yamashita ordered his troops not to
participate in atrocities, but had poor
communications with subordinate units. In at
least one case, a senior subordinate
commander, RADM Sanji Iwabuchi, "declined
to obey" Yamashita's declaration of a Manila
as an open city, refused to join Yamashita's
main force in rural areas north of Manila, and
massacred approximately 100,000
civilians.[3]
Terauchi had a stroke on 10 April 1945, and
surrendered to Lord Mountbatten on 12th
September 1945, and died in November
1945; it is not known if he was to be
charged as Yamashita's commander.
Yamashita also had surrendered on 2
September, at Bagio, to the representatives
of the Allied forces, among whom was
Gen. Arthur Percival, whom he had defeated
at Singapore.
At a tribunal in Manila, he was charged with
not preventing war crimes by troops under
his command, even though evidence was
given that he tried to prevent them, and also
had poor communications with subordinates.
The Yamashita Doctrine requires that a
commander, even though he does not take
active part in atrocities, has a positive
responsibility to prevent them. It has proven
inconvenient in other wars, such as the
possible command responsibility of
Gen. William Westmoreland for the My
Lai massacre, of which Westmoreland has
never been suspected of having prior
knowledge.[4]
There have been questions if Douglas
MacArthur exerted undue command
influence over the title. It is worth noting
that MacArthur granted Masaharu Homma,
the Philippines commander in 1941-1942,
the more "honorable" privilege of being shot,
while he insisted Yamashita be hanged.
Decision
The majority opinion said,
We do not here appraise the evidence on
which petitioner was convicted. We do not
consider what measures, if any, petitioner
took to prevent the commission, by the
troops under his command, of the plain
violations of the law of war detailed in the
bill of particulars, or whether such measures
as he may have taken were appropriate and
sufficient to discharge the duty imposed
upon him. These are questions within the
peculiar competence of the military officers
composing the commission and were for it to
decide. See Smith v. Whitney, [5] It is plain
that the charge on which petitioner was tried
charged him with a breach of his duty to
control the operations of the members of his
command, by permitting them to commit the
specified atrocities. This was enough to
require the commission to hear evidence
tending to establish the culpable failure of
petitioner to perform the duty imposed on
him by the law of war, and to pass upon its
sufficiency to establish guilt.
Obviously, charges of violations of the law of
war triable before a military tribunal need
not be stated with the precision of a common
law indictment. Cf. Collins v.
McDonald [6] But we conclude that the
allegations of the charge, tested by any
reasonable standard, adequately allege a
violation of the law of war, and that the
commission had authority to try and decide
the issue which it raised. Cf. Dealy v. United
States [7] Williamson v. United
States Glasser v. United States
[8]
(4) West Germany vs. Denmark, West
Germany vs. Netherlands, International
Court of Justice
Overview: The jurisprudence of the North
Sea Continental Shelf Cases sets out the
dual requirement for the formation
of customary international law: (1) State
practice (the objective element) and (2)
opinio juris (the subjective element). In
these cases, the Court explained the criteria
necessary to establish State practice –
widespread and representative participation.
It highlighted that the practices of those
States whose interests were specially
affected by the custom were especially
relevant in the formation of customary law.
It also held that uniform and consistent
practice was necessary to
demonstrate opinio juris – opinio juris is the
belief that State practice amounts to a legal
obligation. The North Sea Continental Self
Cases also dispelled the myth that duration
of the practice (i.e. the number of years)
was an essential factor in forming customary
international law.
The case involved the delimitation of the
continental shelf areas in the North Sea
between Germany and Denmark and
Germany and Netherlands beyond the partial
boundaries previously agreed upon by these
States. The parties requested the Court to
decide the principles and rules of
international law that are applicable to the
above delimitation because the parties
disagreed on the applicable principles or
rules of delimitation. Netherlands and
Denmark relied on the principle of
equidistance (the method of determining the
boundaries in such a way that every point in
the boundary is equidistant from the nearest
points of the baselines from which the breath
of the territorial sea of each State is
measured). Germany sought to get a
decision in favour of the notion that the
delimitation of the relevant continental shelf
was governed by the principle that each
coastal state is entitled to a just and
equitable share (hereinafter called just and
equitable principle/method). Contrary to
Denmark and Netherlands, Germany argued
that the principle of equidistance was neither
a mandatory rule in delimitation of the
continental shelf nor a rule of customary
international law that was binding on
Germany. The Court was not asked to
delimit because the parties had already
agreed to delimit the continental shelf as
between their countries, by agreement, after
the determination of the Court on the
applicable principles.
Facts of the Case:
Netherlands and Denmark had drawn partial
boundary lines based on the equidistance
principle (A-B and C-D). An agreement on
further prolongation of the boundary proved
difficult because Denmark and Netherlands
wanted this prolongation to take place based
on the equidistance principle (B-E and D-E)
whereas Germany was of the view that,
together, these two boundaries would
produce an inequitable result for her.
Germany stated that due to its concave
coastline, such a line would result in her
losing out on her share of the continental
shelf based on proportionality to the length
of its North Sea coastline. The Court had to
decide the principles and rules of
international law applicable to this
delimitation. In doing so, the Court had to
decide if the principles espoused by the
parties were binding on the parties either
through treaty law or customary
international law.
Questions before the Court (as relevant
to this post):
Is Germany under a legal obligation to
accept the equidistance-special
circumstances principle, contained in Article
6 of the Geneva Convention on the
Continental Shelf of 1958, either as a
customary international law rule or on the
basis of the Geneva Convention?
The Court’s Decision:
The use of the equidistance method had not
crystallised into customary law and the
method was not obligatory for the
delimitation of the areas in the North Sea
related to the present proceedings.
Relevant Findings of the Court:
1. Nature of the treaty obligation: Is the
1958 Geneva Convention, and in particular
Article 6, binding on Germany?
1. Article 6 of the Geneva Convention stated
that unless the parties had already agreed
on a method for delimitation or unless
special circumstances exist, the equidistance
method would apply. Germany had signed,
but not ratified, the Geneva Convention,
while Netherlands and Denmark were parties
to the Convention. The latter two States
argued that while Germany is not a party to
the Convention (not having ratified it), she
was still bound by Article 6 of the Convention
because:
“…(1) by conduct, by public statements and
proclamations, and in other ways, the
Republic has unilaterally assumed the
obligations of the Convention; or has
manifested its acceptance of the
conventional regime; or has recognized it as
being generally applicable to the delimitation
of continental shelf areas…
(2) the Federal Republic had held itself out
as so assuming, accepting or recognizing, in
such a manner as to cause other States, and
in particular Denmark and the Netherlands,
to rely on the attitude thus taken up” (the
latter is called the principle of estoppel).
2. The Court rejected the first argument. It
said that only a ‘very definite very consistent
course of conduct on the part of a State
would allow the Court to presume that the
State had somehow become bound by a
treaty (by a means other than in the formal
manner: i.e. ratification) when the State was
‘at all times fully able and entitled to…’
accept the treaty commitments in a formal
manner. The Court held that Germany had
not unilaterally assumed obligations under
the Convention. The court also took notice of
the fact that even if Germany ratified the
treaty, she had the option of entering into a
reservation on Article 6, following which that
particular article would no longer be
applicable to Germany (in other words, even
if one were to assume that Germany had
intended to become a party to the
Convention, it does not presuppose that it
would have also undertaken those
obligations contained in Article 6).
3. Note: The Vienna Convention on the Law
of Treaties of 1969 (VCLT), which came into
force in 1980, discusses in more detail treaty
obligations of third States (those States who
are not parties to the treaty). It clearly
stipulates that obligations arise for third
States from a provision of a treaty only if (1)
the actual parties to the treaty intended the
provision to create obligations for third
States; and (2) third State expressly accept
those obligations in writing (Article 35 of the
VCLT). The VCLT was not in force when the
Court deliberated on this case. However, as
seen above, the Court’s position is consistent
the VCLT. (See the relevant provisions of
the Vienna Convention on the Law of
Treaties).
4. The Court held that the existence of a
situation of estoppel would have allowed
Article 6 to become binding on Germany –
but held that Germany’s action did not
support an argument for estoppel. The Court
also held that the mere fact that Germany
may not have specifically objected to the
equidistance principle as contained in Article
6, is not sufficient to state that the principle
is now binding upon it.
5. In conclusion, the Court held that
Germany had not acted in any manner so as
to incur obligations contained in Article 6 of
the Geneva Convention. The equidistance–
special circumstances rule was not binding
on Germany by way of treaty law.
2. Nature of the customary international law
obligation: Is Germany bound by the
provisions of Article 6 of the Geneva
Convention in so far as they
reflect customary international law?
6. Netherlands and Denmark argued that
Article 6 also reflected ‘the accepted rule of
general international law on the subject of
continental shelf delimitation’ and that it
existed independently of the Convention.
Therefore, they argued, Germany is bound
by the subject matter of Article 6 by way of
customary international law.
7. To decide if the equidistance principle
bound Germany by way of customary
international law, the Court examined (1)
the status of the principle contained in
Article 6 as it stood when the Convention
was being drawn up; and (2) its status after
the Convention came into force.
(a) What was the customary law status of
Article 6 at the time of drafting the
Convention?
8. The Court held that the principle of
equidistance, as contained in Article 6 did
not form a part of existing or emerging
customary international law at the time of
drafting the Convention. The Court
supported this finding based on (1) the
hesitation expressed by the drafters of the
Convention, the International Law
Commission, on the inclusion of Article 6 into
the Convention and (2) the fact that
reservations to Article 6 was permissible
under the Convention. The Court held:
“… Article 6 is one of those in respect of
which, under the reservations article of the
Convention (Article 12) reservations may be
made by any State on signing, ratifying or
acceding, – for speaking generally, it is a
characteristic of purely conventional rules
and obligations that, in regard to them,
some faculty of making unilateral
reservations may, within certain limits, be
admitted; whereas this cannot be so in the
case of general or customary law rules and
obligations which, by their very nature, must
have equal force for all members of the
international community, and cannot
therefore be the subject of any right of
unilateral exclusion exercisable at will by any
one of them in its own favor…. The normal
inference would therefore be that any
articles that do not figure among those
excluded from the faculty of reservation
under Article 12, were not regarded as
declaratory of previously existing or
emergent rules of law …” (see para 65 for a
counter argument and the Court’s careful
differentiation)
(b) Did the provisions in Article 6 on the
equidistance principle attain the customary
law status after the Convention came into
force?
9. The Court then examined whether the rule
contained in Article 6 had become customary
international law after the Convention
entered into force – either due the
Convention itself (i.e., if enough States had
ratified the Convention in a manner so as to
fulfil the criteria specified below), or because
of subsequent State practice (i.e. even if an
adequate number of States had not ratified
the Convention, one could find sufficient
State practice to meet the criteria below).
The Court held that Article 6 of the
Convention had not attained a customary
law status. (Compare the 1958 Geneva
Convention with the four Geneva
Conventions on 1949 relating to international
humanitarian law in terms of the
latter’s authority as a pronouncement of
customary international law).
10. For a customary rule to emerge the
Court held that it needed: (1) very
widespread and representative participation
in the Convention, including States whose
interests were specially affected (in this case,
they were coastal States) (i.e. generality);
and (2) virtually uniform practice (i.e.
consistent and uniform usage) undertaken in
a manner that demonstrates (3) a general
recognition of the rule of law or legal
obligation (i.e. opinio juries). In the North
Sea Continental Shelf cases the court held
that the passage of a considerable period of
time was unnecessary (i.e. duration) for the
formation of a customary law.
Widespread and representative participation
11. The Court held that the first criteria was
not met. The number of ratifications and
accessions to the Convention (39 States)
were not adequately representative or
widespread.
Duration
12. The Court held that the duration taken
for a customary law rule to emerge is not as
important as widespread and representative
participation, uniform usage, and the
existence of an opinio juris. It held that:
“Although the passage of only a short period
of time (in this case, 3 – 5 years) is not
necessarily, or of itself, a bar to the
formation of a new rule of customary
international law on the basis of what was
originally a purely conventional rule, an
indispensable requirement would be that
within the period in question, short though it
might be, State practice, including that of
States whose interests are specially affected,
should have been both extensive and
virtually uniform in the sense of the
provision invoked and should moreover have
occurred in such a way as to show a general
recognition that a rule of law or legal
obligation is involved.”
Opinio juris
13. Opinio juris is reflected in acts of States
(Nicaragua Case) or in omissions (Lotus
case), in so far as those acts or omissions
were done following a belief that the said
State is obligated by law to act or refrain
from acting in a particular way. (For more
on opinio juris click here).
be evidence of a belief that this practice is
rendered obligatory by the existence of a
rule of law requiring it. The need for such a
belief, i.e, the existence of a subjective
element, is implicit in the very notion of the
opinio juris sive necessitatis. The States
concerned must therefore feel that they
are conforming to what amounts to a
legal obligation. The frequency, or even
habitual character of the acts is not in itself
enough. There are many international acts,
e.g., in the field of ceremonial and protocol,
which are performed almost invariably, but
which are motivated only by considerations
of courtesy, convenience or tradition, and
not by any sense of legal duty.” (Para 77).
15. The Court concluded that the
equidistance principle was not binding on
Germany by way of treaty or customary
international law. In the case of the latter,
the principle had not attained a customary
international law status at the time of the
entry into force of the Geneva Convention or
thereafter. As such, the Court held that
the use of the equidistance method is not
obligatory for the delimitation of the areas
concerned in the present proceedings.

14. The Court examined 15 cases where

States had delimited their boundaries using
the equidistance method, after the
Convention came into force (paras. 75 -77).
The Court concluded that even if there were
some State practice in favour of the
equidistance principle, the Court could not
deduct the necessary opinio juris from this
State practice. The North Sea Continental
Shelf Cases confirmed that both State
practice (the objective element) and opinio
juris (the subjective element) are essential
pre-requisites for the formation of a
customary law rule. This is consistent with
Article 38 (1) (b) of the Statute of the ICJ.
The Court explained the concept of opinio
juris and the difference between customs (i.e.
habits) and customary law:

“Not only must the acts concerned amount

to a settled practice, but they must also be
such, or be carried out in such a way, as to
(5) Nicaragua vs. United States
Brief Fact Summary. Nicaragua (P) brought a
suit against the United States (D) on the
ground that the United States (D) was
responsible for illegal military and
paramilitary activities in and against
Nicaragua. The jurisdiction of the
International Court of Justice to entertain the
case as well as the admissibility of
Nicaragua’s (P) application to the I.C.J. was
challenged by the United States (D).
Synopsis of Rule of Law. Nicaragua (P)
brought a suit against the United States (D)
on the ground that the United States (D)
was responsible for illegal military and
paramilitary activities in and against
Nicaragua. The jurisdiction of the
International Court of Justice to entertain the
case as well as the admissibility of
Nicaragua’s (P) application to the I.C.J. was
challenged by the United States (D).
Facts. The United States (D) challenged the
jurisdiction of the I.C.J when it was held
responsible for illegal military and
paramilitary activities in and against
Nicaragua (P) in the suit the plaintiff brought
against the defendant in 1984. Though a
declaration accepting the mandatory
jurisdiction of the Court was deposited by
the United States (D) in a 1946, it tried to
justify the declaration in a 1984 notification
by referring to the 1946 declaration and
stating in part that the declaration “shall not
apply to disputes with any Central American
State….”
Apart from maintaining the ground that the
I.C.J lacked jurisdiction, the States (D) also
argued that Nicaragua (P) failed to deposit a
similar declaration to the Court. On the other
hand, Nicaragua (P) based its argument on
its reliance on the 1946 declaration made by
the United states (D) due to the fact that it
was a “state accepting the same obligation”
as the United States (D) when it filed
charges in the I.C.J. against the United
States (D). Also, the plaintiff intent to
submit to the compulsory jurisdiction of the
I.C.J. was pointed out by the valid
declaration it made in 1929 with the I.C.J’s
predecessor, which was the Permanent Court
of International Justice, even though
Nicaragua had failed to deposit it with that
court. The admissibility of Nicaragua’s (P)
application to the I.C.J. was also challenged
by the United States (D).
Issue. (1) Is the jurisdiction to entertain a
dispute between two states, if they both
accept the Court’s jurisdiction, within the
jurisdiction of the International Court of
Justice?
(2) Where no grounds exist to exclude the
application of a state, is the application of
such a state to the International Court of
Justice admissible?
Held. (1) Yes. The jurisdiction of the Court to
entertain a dispute between two states if
each of the States accepted the Court’s
jurisdiction is within the jurisdiction of the
International Court of Justice. Even though
Nicaragua (P) declaration of 1929 was not
deposited with the Permanent Court,
because of the potential effect it had that it
would last for many years, it was valid.
Thus, it maintained its effect when Nicaragua
became a party to the Statute of the I.C.J
because the declaration was made
unconditionally and was valid for an
unlimited period. The intention of the current
drafters of the current Statute was to
maintain the greatest possible continuity
between it and the Permanent Court. Thus,
when Nicaragua (P) accepted the Statute,
this would have been deemed that the
plaintiff had given its consent to the transfer
of its declaration to the I.C.J.
(2) Yes. When no grounds exist to exclude
the application of a state, the application of
such a state to the International Court of
Justice is admissible. The five grounds upon
which the United States (D) challenged the
admissibility of Nicaragua’s (P) application
were that the plaintiff failed because there is
no “indispensable parties” rule when it could
not bring forth necessary parties,
Nicaragua’s (P) request of the Court to
consider the possibility of a threat to peace
which is the exclusive province of the
Security Council, failed due to the fact that
I.C.J. can exercise jurisdiction which is
concurrent with that of the Security Council,
that the I.C.J. is unable to deal with
situations involving ongoing armed conflict
and that there is nothing compelling the I.C.J.
to decline to consider one aspect of a dispute
just because the dispute has other aspects
due to the fact that the case is incompatible
with the Contadora process to which
Nicaragua (P) is a party.

Discussion. Although the questions of

jurisdiction and admissibility are primarily
based on the principle that the I.C.J. has
only as much power as that agreed to by the
parties, these can be quite complicated. The
1946 declaration of the United States and
the 1929 declaration of Nicaragua was the
main focus of the case on declaration and
each of these declarations pointed out the
respective parties’ intent as it related to the
I.C.J’s jurisdiction.
(6) Kuroda vs. Jalandoni
Doctrine: Rules and regulations of the
Hague and Geneva conventions form part of
and are wholly based on the generally
accepted principals of international law. They
form part of the law of our nation even if the
Philippines was not a signatory to the
conventions embodying them, for our
Constitution has been deliberately general
and extensive in its scope and is not
confined to the recognition of rules and
principles of international law as contained in
treaties to which our government may have
been or shall be a signatory.
Facts:
- A Military commission was empaneled
under the authority of Executive Order 68 of
the President of the Philippines, which was
issued on July 29, 1947. This is an act
establishing a national war crimes office and
prescribing rules and regulation governing
the trial of accused war criminals.
- Shigenori Kuroda, formerly a Lieutenant-
General of the Japanese Imperial Army and
Commanding General of the Japanese
Imperial Forces in The Philippines from
1943-1944, is charged before a military
commission convened by the Chief of Staff of
the Armed forces of the Philippines with
having unlawfully disregarded and failed "to
discharge his duties as such command,
permitting them to commit brutal atrocities
and other high crimes against noncombatant
civilians and prisoners of the Imperial
Japanese Forces in violation of the laws and
customs of war".
- Melville Hussey and Robert Port, American
lawyers, were appointed prosecutors in
behalf of USA.
- Kuroda challenges the legality of the EO No.
68 and the personality as prosecutors of
Hussey and Port.
- Kuroda’s arguments were: (1)EO No. is
illegal on the gound that ut wiolates not only
the provisions of our constitutional law but
also our local laws; (2) Military Commission
has no Jurisdiction to try him for acts
committed in violation of the Hague
Convention and the Geneva Convention
because the Philippines is not a signatory to
the first and signed the second only in 1947
and, therefore, he is charged with “crime”
not based on law, national or international;
and (3) Hussey and Port have no personality
as prosecutors in this case because they are
not qualified to practice law in Philippines in
accordance with our Rules of court and the
appointment of said attorneys as prosecutors
is violative of our national sovereignty.
Issues/Held: (1) WON EO No. 68 is valid
and constitutional? [Yes, it is a valid because
it is based on the generally accepted
principles of international law which form
part of our laws.]
(2) WON rules and regulations of the Hague
and Geneva Conventions form part of the
law of the nation even if Philippines was not
a signatory to the conventions embodying
them? [Yes, they form part of our laws.]
(3) WON the American lawyers could
participate in the prosecution of this case?
[Yes, they can.]
Ratio: (1) The order is valid and
constitutional. Article 2 of our Constitution
provides in its section 3, that- The
Philippines renounces war as an instrument
of national policy and adopts the generally
accepted principles of international law as
part of the nation.
In accordance with the generally
accepted principle of international law
of the present day including the Hague
Convention the Geneva Convention and
significant precedents of international
jurisprudence established by the United
Nation, all those person military or
civilian who have been guilty of
planning preparing or waging a war of
aggression and of the commission of
crimes and offenses consequential and
incidental thereto in violation of the
laws and customs of war, of humanity
and civilization are held accountable
therefor. Consequently, in the promulgation
and enforcement of Execution Order No. 68,
the President of the Philippines has acted in
conformity with the generally accepted and
policies of international law which are part of
our Constitution.
The promulgation of said executive order is
an exercise by the President of his power as
Commander in chief of all our armed forces
as upheld by this Court in the case of
Yamashita vs. Styer. Consequently, the
President as Commander in Chief is fully
empowered to consummate this unfinished
aspect of war namely the trial and
punishment of war criminal through the
issuance and enforcement of Executive Order
No. 68.
(2) Rules and regulations of the Hague and
Geneva conventions form part of and are
wholly based on the generally accepted
principals of international law. In fact, these
rules and principles were accepted by the
two belligerent nations, the United States
and Japan, who were signatories to the two
Conventions. Such rule and principles
therefore form part of the law of our
nation even if the Philippines was not a
signatory to the conventions embodying
them, for our Constitution has been
deliberately general and extensive in its
scope and is not confined to the
recognition of rules and principles of
international law as contained in
treaties to which our government may
have been or shall be a signatory.
Furthermore when the crimes charged
against petitioner were allegedly committed
the Philippines was under the sovereignty of
United States and thus we were equally
bound together with the United States and
with Japan to the right and obligation
contained in the treaties between the
belligerent countries.
(3) There is nothing in said executive order
which requires that counsel appearing before
said commission must be attorneys qualified
to practice law in the Philippines in
accordance with the Rules of Court.
Respondent Military Commission is a special
military tribunal governed by a special law
and not by the Rules of court which govern
ordinary civil court. Secondly, the
appointment of the two American attorneys
is not violative of our nation sovereignty. It
is only fair and proper that United States,
which has submitted the vindication of
crimes against her government and her
people to a tribunal of our nation, should be
allowed representation in the trial of those
very crimes. If there has been any
relinquishment of sovereignty it has not
been by our government but by the United
States Government which has yielded to us
the trial and punishment of her enemies.
DISSENTING OPINION of Justice
Perfecto
(1) Executive Order No. 68., is null and void
because, through it, the President of the
Philippines usurped power expressly vested
by the Constitution in Congress and in the
Supreme Court.
EO No. 68 confers upon military commissions
jurisdiction to try all persons charged with
war crimes. It is clearly legislative in nature.
The power to define and allocate jurisdiction
for the prosecution of person accused of any
crime is exclusively vested by the
Constitution in Congress. It also appropriates
the sum of P700,000 for the expenses of the
National War Crimes office established by
the said EO No. 68. This constitutes another
usurpation of legislative power as the power
to vote appropriations belongs to Congress.
It provides rules of procedure for the
conduct of trial. This provision on procedural
subject constitutes a usurpation of the rule-
making power vested by Constitution in the
Supreme Court.
(2) Respondents suggest that the President
issued EO No. 68 under the emergency
powers granted to him by Commonwealth
Act No. 600, as amended by Commonwealth
Act No. 620, and Commonwelath Act No.
671.
The above Acts cannot validly be invoked,
because they ceased to have effect much
before Executive Order No. 68 was issued on
July 29, 1947. Said Acts had elapsed upon
the liberation of the Philippines from the
Japanese forces or, at the latest, when the
surrender of Japan was signed in Tokyo on
September 2, 1945. It has never been the
purpose of the National Assembly to extend
the delegation of legislative powers to the
President beyond the emergency created by
the war, as to extend it farther would be
violative of the express provisions of the
Constitution. EO No. 68 is equally offensive
to the Constitution because it violates the
fundamental guarantees of the due process
and equal protection of the law because it
permits the admission of many kinds
evidence by which no innocent person can
afford to get acquittal and by which it is
impossible to determine whether an accused
is guilty or not beyond all reasonable doubt.
(7) Marcos vs. Manglapus
FACTS:
In February 1986, Ferdinand E. Marcos was
deposed from precidency via the non-violent
“people power” revolution and forced into
exile.
Corazon Aquino was declared President of
the Republic under a revolutionary
government.
Her ascension to and consolidation of power
have not been unchallenged. The failed
Manila Hotel coup in 1986 led by political
leaders of Mr. Marcos, the takeover of
television station Channel 7 by rebel troops
with the support of “Marcos loyalists” and
the unsuccessful plot of the Marcos spouse
to return from Hawaii awakened the nation
to the capacity of the Marcoses to stir
trouble even from afar and to the fanatism
and blind loyalty of their followers in the
country.
Marcos, in his deathbed, has signified his
wish to return to the Philippines to die.
President Aquino, considering the dire
consequence to the nation of his return, has
stood firmly on the decision to bar the return
of Marcos and his family.
ISSUE: Whether or not, in the exercise
of the powers granted by the Constitution,
the President may prohibit the Marcoses
from retyrning to the Philippines.
RULING:
The right to return to one's country is not
among the rights specifically guaranteed in
the Bill of Rights, which treats only of the
liberty of abode and the right to travel, but it
is our well-considered view that the right to
return may be considered, as a generally
accepted principle of international law and,
under our Constitution, is part of the law of
the land [Art. II, Sec. 2 of the Constitution.]
However, it is distinct and separate from the
right to travel and enjoys a different
protection under the International Covenant
of Civil and Political Rights, i.e., against
being "arbitrarily deprived" thereof [Art. 12
(4).]
Faced with the problem of whether or not
the time is right to allow the Marcoses to
return to the Philippines, the President is,
under the Constitution, constrained to
consider these basic principles in arriving at
a decision. More than that, having sworn to
defend and uphold the Constitution, the
President has the obligation under the
Constitution to protect the people, promote
their welfare and advance the national
interest. It must be borne in mind that the
Constitution, aside from being an allocation
of power is also a social contract whereby
the people have surrendered their sovereign
powers to the State for the common good.
Hence, lest the officers of the Government
exercising the powers delegated by the
people forget and the servants of the people
become rulers, the Constitution reminds
everyone that "[s]overeignty resides in the
people and all government authority
emanates from them." [Art. II, Sec. 1.]
The Court cannot close its eyes to present
realities and pretend that the country is not
besieged from within by a well-organized
communist insurgency, a separatist
movement in Mindanao, rightist conspiracies
to grab power, urban terrorism, the murder
with impunity of military men, police officers
and civilian officials, to mention only a few.
The documented history of the efforts of the
Marcose's and their followers to destabilize
the country, as earlier narrated in
this ponencia bolsters the
conclusion that the return of the Marcoses at
this time would only exacerbate and intensify
the violence directed against the State and
instigate more chaos.
The President has determined that the
destabilization caused by the return of the
Marcoses would wipe away the gains
achieved during the past few years and lead
to total economic collapse. Given what is
within our individual and common knowledge
of the state of the economy, we cannot
argue with that determination.
WHEREFORE, and it being our well-
considered opinion that the President did not
act arbitrarily or with grave abuse of
discretion in determining that the return of
former President Marcos and his family at
the present time and under present
circumstances poses a serious threat to
national interest and welfare and in
prohibiting their return to the Philippines, the
instant petition is hereby DISMISSED.
Marcos v Manglapus, et. al. (Oct. 27,
1989)
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.
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.
Issue:
"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 "and under
our Constitution as part of the law of the
land. "
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.

The return of the Marcoses poses a serious

threat and therefore prohibiting their return
to the Philippines, the instant petition is
hereby DISMISSED.
(8) Oposa vs. Factoran
Facts:
The principal petitioners, all minors duly
represented and joined by their respective
parents. Impleaded as an additional plaintiff
is the Philippine Ecological Network, Inc.
(PENI), a domestic, non-stock and non-profit
corporation organized for the purpose
of, inter alia, engaging in concerted action
geared for the protection of our environment
and natural resources. The petitioners
alleged the respondent, Honorable Fulgencio
S. Factoran, Jr., then Secretary of the
Department of Environment and Natural
Resources (DENR), continued approval of the
Timber License Agreements (TLAs) to
numerous commercial logging companies to
cut and deforest the remaining forests of the
country. Petitioners request the defendant,
his agents, representatives and other
persons acting in his behalf to:
 Cancel all existing timber license
agreements in the country;
 Cease and desist from receiving,
accepting, processing, renewing or
approving new timber license agreements.
Plaintiffs further assert that the adverse and
detrimental consequences of continued and
deforestation are so capable of
unquestionable demonstration that the same
may be submitted as a matter of judicial
notice. This act of defendant constitutes a
misappropriation and/or impairment of the
natural resource property he holds in trust
for the benefit of plaintiff minors and
succeeding generations. Plaintiff have
exhausted all administrative remedies with
the defendant’s office. On March 2, 1990,
plaintiffs served upon defendant a final
demand to cancel all logging permits in the
country. Defendant, however, fails and
refuses to cancel the existing TLA’s to the
continuing serious damage and extreme
prejudice of plaintiffs.
Issues:
 Whether or not the petitioners have the
right to bring action to the judicial power
of the Court.
 Whether or not the petitioners failed to
allege in their complaint a specific legal
right violated by the respondent
Secretary for which any relief is provided
by law.
 Whether or not petitioners’ proposition to
have all the TLAs indiscriminately
cancelled without the requisite hearing
violates the requirements of due process.
Rulings:
In the resolution of the case, the Court held
that:
 The petitioners have the right to bring
action to the judicial power of the Court.
1. The case at bar is subject to judicial
review by the Court. Justice Davide, Jr.
precisely identified in his opinion the
requisites for a case to be subjected
for the judicial review by the Court.
According to him, the subject matter
of the complaint is of common interest,
making this civil case a class suit and
proving the existence of an actual
controversy. He strengthens this
conclusion by citing in the decision
Section 1, Article 7 of the 1987
Constitution.
2. The petitioners can file a class suit
because they represent their
generation as well as generations yet
unborn. Their personality to sue in
behalf of the succeeding generations
can only be based on the concept of
intergenerational responsibility insofar
as the right to a balanced and
healthful ecology is concerned. Such a
right, as hereinafter expounded,
considers the “rhythm and harmony of
nature.” Nature means the created
world in its entirety. Such rhythm and
harmony indispensably include, inter
alia, the judicious disposition,
utilization, management, renewal and
conservation of the country’s forest,
mineral, land, waters, fisheries,
wildlife, off-shore areas and other
natural resources to the end that their
 exploration, development and
utilization be equitably accessible to
the present as well as future
generations.
3. Every generation has a responsibility
to the next to preserve that rhythm
and harmony for the full enjoyment of
a balanced and healthful ecology. Put
a little differently, the minors’
assertion of their right to a sound
environment constitutes, at the same
time, the performance of their
obligation to ensure the protection of
that right for the generations to come.
 The Court does not agree with the trial
court’s conclusions that the plaintiffs
failed to allege with sufficient definiteness
a specific legal right involved or a specific
legal wrong committed, and that the
complaint is replete with vague
assumptions and conclusions based on
unverified data.
1. The complaint focuses on one specific
fundamental legal right — the right to
a balanced and healthful ecology
which, for the first time in our nation’s
constitutional history, is solemnly
incorporated in the fundamental law.
Section 16, Article II of the 1987
Constitution explicitly provides:
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.
1. This right unites with the right to health
which is provided for in the preceding
section of the same article:
Sec. 15. The State shall protect and promote
the right to health of the people and instill
health consciousness among them.
1. While the right to a balanced and
healthful ecology is to be found under the
Declaration of Principles and State
Policies and not under the Bill of Rights, it
does not follow that it is less important
than any of the civil and political rights
enumerated in the latter. Such a right
belongs to a different category of rights
altogether for it concerns nothing less
than self-preservation and self-
perpetuation — aptly and fittingly
stressed by the petitioners — the
advancement of which may even be said
to predate all governments and
constitutions. As a matter of fact, these
basic rights need not even be written in
the Constitution for they are assumed to
exist from the inception of humankind.
 The Court are not persuaded by the trial
court’s pronouncement.
1. The respondent Secretary did not
invoke in his motion to dismiss the
non-impairment clause. If he had
done so, Justice Feliciano would have
acted with utmost infidelity to the
Government by providing undue and
unwarranted benefits and advantages
to the timber license holders because
he would have forever bound the
Government to strictly respect the
said licenses according to their terms
and conditions regardless of changes
in policy and the demands of public
interest and welfare. He was aware
that as correctly pointed out by the
petitioners, into every timber license
must be read Section 20 of the
Forestry Reform Code (P.D. No. 705)
which provides that when the national
interest so requires, the President may
amend, modify, replace or rescind any
contract, concession, permit, licenses
or any other form of privilege granted
herein .
2. All licenses may thus be revoked or
rescinded by executive action. It is not
a contract, property or a property
right protested by the due process
clause of the Constitution.
Hence, the instant Petition is hereby
GRANTED, and the challenged Order of
respondent Judge of 18 July 1991 dismissing
Civil Case No. 90-777 was set aside. The
petitioners amend their complaint to implead
as defendants the holders or grantees of the
questioned timber license agreements.
(9) Chaplinsky vs. New Hampshire Judgment:

Statement of the facts:
Defendant Chaplinsky was a Jehovah’s
Witness who distributed his religion’s beliefs
through pamphlets on street corners. Other
citizen claimed that Chaplinsky was
denouncing other religions. City Marshal
Bowering received multiple complaints
regarding Chaplinsky’s speech, Bowering
responded by informing several citizens that
Chaplinsky was lawfully allowed to voice his
beliefs. Bowering also warned Chaplinsky
about the complaining crowd and their
growing agitation. Shortly after, a public
disturbance arose and Chaplinsky was
brought to the police station. En route,
Chaplinsky called Bowering a “facist” and a
“racketeer.” After admitting to the utterance
of the words in question, Chaplinsky was
convicted under a New Hampshire statute
which read:
“No person shall address any offensive,
derisive or annoying word to any other
person who is lawfully in any street or other
public place, nor call him by any offensive or
derisive name, nor make any noise or
exclamation in his presence and hearing with
intent to deride, offend or annoy him, or to
prevent him from pursuing his lawful
business or occupation.”
Procedural History:
The Court affirmed the state supreme court’s
judgment.
Reasoning:
The Court held that the freedom of speech
protected under the First Amendment cannot
be absolute.
It is permissible to construct certain narrow
categories of speech that do not receive
protection. This category of unprotected
speech includes lewd, obscene, profane,
libelous speech, insulting speech and
“fighting words.” The Court defined fighting
words as words that by their very utterance,
inflict injury or tend to incite an immediate
breach of the peace. The Court held that this
form of speech has limited social value. It
also fails to provide input to the
“marketplace of ideas” which the First
Amendment sets out to protect.
Here, the speech directed at Bowering fell
into the fighting words category of speech
and as a result, the state statute is not
unconstitutional.
Significance:
This is the landmark case which outlines the
unprotected status of words which constitute
“fighting words.”

Chaplinsky appealed to the state supreme

court, who affirmed the lower court’s
decision. In response, Chaplinsky appealed
to the United States Supreme Court.

Rule of Law or Legal Principle Applied:

The First Amendment right to free speech

does not protect fighting words which incite
others to violence.

Issue and Holding:

Is a state law prohibiting annoying, derisive

or offensive speech on public streets
unconstitutional in violation of the First
Amendment? No.