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CJURIS 2

CRIMINAL LAW AND JURISPRUDENCE 2 HUMAN RIGHTS EDUCATION

Introduction

Democracy is a valued principle, so much so that some people have sacrificed their lives
for it. While no system is perfect, it seems that democracy is once again under assault. What are
the challenges posed in a democratic system and are established safeguards helping to
strengthen democracy or are their forces successfully weakening it?

Human rights in the Philippines pertains to the concept, practice, and issues of human
rights within the Philippine archipelago. The concept of “Human Rights”, in the context of the
Philippines, pertains mainly (but is not limited to) to the following:

1. to the civil and political rights of a person

2. living in the Philippines by reason of the 1987 Philippine Constitution.

Human rights are a justified set of claims that set moral standards to members of the
human race, not exclusive to a specific community or citizenship. Membership in the human race
is the sole qualification to obtain these right. Human rights, unlike area-specific conventions of
international laws (ex. European Convention on Human Rights and International Covenant on
Civil and Political Rights and on Economic, Social and Cultural Rights), are universally justifiable
as it pertains to the entire human race, regardless of geographical location (Dela Cruz, Florendo).

LESSON 1: CONCEPTS AND PRINCIPLES OF HUMAN RIGHTS

“Human rights as those rights which are inherent in our nature and without which we
cannot live as human beings”

-United Nations

Human dignity plays a special part of the provision of our preamble in the 1987 Constitution. The
state values the dignity of every human person and guarantees full respect for human rights.

The Congress shall give highest priority to the enactment of measures that protect and enhance
the right of all the people to human dignity, reduce social, economic and political inequalities, and
remove cultural inequalities by equitably diffusing wealth and political power for the common good
(Sec. 11, Art. II, Phil. Constitution).

What is Human Rights?

Human rights may be defined as the Supreme, Inherent and Inalienable rights to life, to
dignity, and to self-development. It is the essence of these rights that makes human. Human rights
are fundamental freedoms which are necessary and indispensable in order to enable every
member of the human race to live a life to dignity.

Other definitions:

It is a difficult thing to stand up for what you believe in.

Those basic standards without which people cannot live in dignity as human beings.

It is the foundation of freedom, justice and peace.

Confucian – “Thou shall not do to others, what you do not want others do unto you”.

Islam Advocates – “No one of you is a believer, until he desires for his brother, that which he
desires for himself”.

Christianity teaches – “In everything, do to others just what you want them to do for you”.
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Human Rights as Birthright

Those rights which are inherent in our nature and without which we cannot live as human
beings.

Abuse of rights can cause conflicts.

The roots of internal conflict are due to the denial of human rights.

Classification of Human Rights

1. Natural or Moral Rights – God given rights, acknowledged morally good.

2. Legal rights

▪ Constitutional rights – Guaranteed in bill of rights of the Constitution.

▪ Statutory rights – Rights promulgated by legislative body.

According to Aspect of Life:

1. Civil Rights – Rights the law will enforce at instance of private individuals for purpose of
securing to them the enjoyment of happiness. Civil rights guarantee people from abuses of State
agents in the exercise of the state’s three (3) inherent powers (police power, power of imminent
domain and power of taxation).

2. Political Rights – Are those rights which enable us to participate in running the affairs of
the government either directly or indirectly.

- Civil and Political rights are guarantees against government abuse.

3. Justifiable rights – Immediately enforced once violated. Called negative rights because
State is refrained from violating them.

4. Economic, Social and Cultural Rights – Rights of people to self-determination, to

pursue economic, social and cultural development and financial security. Ensure a life dignity.
Called positive rights – State expected to take effective measures to fulfill them. Referred as
programmable rights – depends upon resources and political will of the state.

According to Derogability:

1. Non-derogable or Absolute rights – Rights that cannot be suspended nor taken away
nor restricted or limited even in extreme emergency and even if government invoke national
security.

2. Derogable or Relative rights – Maybe suspended or restricted or limited depending on

circumstances-for preservation of social life.

State Obligations to Human Rights:

1. Obligation to RESPECT – Requires the state and all its organs and agents to abstain
from doing anything that violates the integrity of individual or fringes on his/her freedom.

2. Obligation to PROTECT – Requires the state and its agents – the measures necessary
to prevent other individuals or groups from violating the integrity, freedom of action, or the human
rights of the individual.

3. Obligation to FULFILL – Requires the state to take measures to ensure for each person
within its jurisdiction opportunities to obtain satisfaction of those needs, recognized in the human
rights instruments, which cannot be secured by personal efforts.

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Questions of Legality, Necessity and Proportionality using any military power or authority:

1. Does the power or authority used in a particular situation have its basis in national law?

2. Is the exercise of that particular power or authority strictly necessary, given the
circumstances of the respective situation?

3. Is the power or authority used in proportion to the seriousness of the offense and the
legitimate military objective to be achieved?

Basic Principles of Human Rights

Human rights are inherent. Human rights are birthrights. They belong to the individual
person for reason that he or she is a human being.

• Fundamental – Without human rights, a person’s life and dignity would be worthless and
meaningless.

• It is Inalienable – As such they cannot be stripped or rightfully taken away from any free
human person.

• It is Imprescriptible – Human rights are not lost by mere passage of time. Human rights
do not prescribe even if he fails to use or was prevented from asserting them. Human
rights are indivisible, interrelated. The indivisibility of human rights is a manifestation that
a person cannot be denied or deprived of his/her human rights, notwithstanding that he
or she has already enjoyed, or is already enjoying other rights. Human rights are not piece
of meal rights and freedoms, hence, not capable of being divided.

• It is Universal – Human rights are endowed every human being from the moment of birth,
without distinction or irrespective of origin, sex, race, creed, political color, status or
condition in life.

• It is Interdependent – The fulfilment, enjoyment or exercise of a particular right cannot

be attained without the realization of the other rights.

• Equality – Even the law of nature made manifest this basic principle by the fact that all
human beings, male or female, are born naked and helpless.

HISTORY OF HUMAN RIGHTS

Cyrus the Great, the first king of Persia, freed the slaves of Babylon, 539 B.C.

In 539 B.C., the armies of Cyrus the Great, the first king of ancient Persia, conquered the
city of Babylon. But it was his next actions that marked a major advance for man. He freed the
slaves, declared that all people had the right to choose their own religion, and established racial
equality. These and other decrees were recorded on a baked-clay cylinder in the Akkadian
language with cuneiform script.

Known today as the Cyrus Cylinder, this ancient record has now been recognized as the
world’s first charter of human rights. It is translated into all six official languages of the United
Nations and its provisions parallel the first four Articles of the Universal Declaration on Human
Rights.

The Spread of Human Rights

From Babylon, the idea of human rights spread quickly to India, Greece and eventually
Rome. There the concept of “natural law” arose, in observation of the fact that people tended to
follow certain unwritten laws in the course of life, and Roman law was based on rational ideas
derived from the nature of things.

Documents asserting individual rights, such as the Magna Carta (1215), the Petition of
Right (1628), the US Constitution (1787), the French Declaration of the Rights of Man and of the
Citizen (1789), and the US Bill of Rights (1791) are the written precursors to many of today’s
human rights documents.
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The Magna Carta (1215)

Magna Carta or “Great Charter”, signed by the King of England in 1215, was a turning
point in human rights. The Magna Carta was arguably the most significant early influence on the
extensive historical process that led to the rule of constitutional law today in the English-speaking
world.

In 1215, after King John of England violated a number of ancient laws and customs by
which England had been governed, his subjects forced him to sign the Magna Carta, which
enumerates what later came to be thought of as human rights. Among them was the right of the
church to be free from governmental interference, the rights of all free citizens to own and inherit
properties and to be protected from excessive taxes. It established the right of widows who owned
property to choose not to remarry, and established principles of due process and equality before
the law. It also contained provisions forbidding bribery and official misconduct.

Widely viewed as one of the most important legal documents in the development of
modern democracy, the Magna Carta was a crucial turning point in the struggle to establish
freedom.

Petition of Right (1628)

In 1628 the English Parliament sent his statement of civil liberties to King Charles I. The
next recorded milestone in the development of human rights was the Petition of Right, produced
in 1628 by the English Parliament and sent to Charles I as a statement of civil liberties. Refusal
by Parliament to finance the King’s unpopular foreign policy had caused his government to exact
forced loans and to quarter troops in subject’s houses as an economy measure. Arbitrary arrest
and imprisonment for opposing these policies had produced in Parliament violent hostility to
Charles and to George Villiers, the Duke of Buckingham. The Petition of Right, initiated by Sir
Edward Coke, was based upon earlier statutes and charters and asserted four principles: (1) No
taxes may be levied without consent of Parliament, (2) No subject may be imprisoned without
cause shown (reaffirmation of the right of habeas corpus), (3) No soldiers may be quartered upon
the citizenry, and (4) Martial Law may not be used in time of peace.

United States Declaration of Independence (1776)

In 1776, Thomas Jefferson penned the American Declaration of Independence. On July

4, 1776, the United States Congress approved the Declaration of Independence. Its primary
author, Thomas Jefferson, wrote the declaration as a formal explanation of why Congress had
voted on July 02 to declare independence from Great Britain, more than a year after the outbreak
of the American Revolutionary War, and as a statement announcing that the thirteen American
Colonies were no longer part of the British Empire. Congress issued the Declaration of
Independence in several forms. It was initially published as a printed broadsheet that was widely
distributed and read to the public.

Philosophically, the Declaration stressed two themes: (1) Individual rights, and (2) Right
of Revolution. These ideas became widely held by Americans and spread internationally as well,
influencing in particular the French Revolution.

The Constitution of the United States of America (1787) and Bill of Rights (1791)

The Bill of Rights of the US Constitution protects basic freedoms of the United States
citizens. Written during the summer of 1787 in Philadelphia, the Constitution of the United States
of America is the fundamental law of the US federal system of government and the landmark
document of the Western world. It is the oldest written national constitution in use and defines the
principal organs of government and their jurisdictions and the basic rights of citizens.

The Bill of Rights protects freedom of speech, freedom of religion, the right to keep and
bear arms, the freedom of assembly and the freedom of petition. It also prohibits unreasonable
search and seizure, cruel and unusual punishment and compelled self-incrimination. Among the
legal protections it affords, the Bill of Rights prohibits Congress from making any law respecting
establishment of religion and prohibits the federal government from depriving any persons’ life,
liberty and property without due process of law. In federal criminal cases it requires indictment by

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a grand jury for any capital offense, or infamous crime, guarantees a speedy public trial with an
impartial jury in the district in which the crime occurred, and prohibits double jeopardy.

Declaration of the Rights of Man and of the Citizen (1789)

In 1789, the people of France brought about the abolishment of the absolute monarchy
and set the stage for the establishment of the first French Republic. Just six weeks after the
storming of the Bastille, and barely three (3) weeks after the abolition of Feudalism. The
Declaration of the rights of Man and of the Citizen (French: La Declaration des Droits de I’Homme
et du Citoyen) was adopted by the National Constituent Assembly as the first step toward writing
a constitution for the Republic of France.

The declaration proclaims that all the citizens are to be guaranteed the rights of “liberty,
property, security and resistance to oppression.” It argues that the need for law derives from the
fact that “…the exercise of the natural rights of each man has only those boarders which assure
other members of the society the enjoyment of these same rights.” Thus, the Declaration sees
law as an “expression of the general will, intended to promote this equality of rights and to forbid
only actions harmful to the society.”

The First Geneva Convention

The original document from the first Geneva Convention in 1864 provided for care to
wounded soldiers.

In 1864, sixteen European countries and several American states attended a conference
in Geneva, at the invitation of the Swiss Federal Council, on the initiative of the Geneva
Committee. The Diplomatic conference was held for the purpose of adopting a convention for the
treatment of wounded soldiers in combat.

The main principles laid down in the Convention and maintained by the later Geneva
Conventions provided for the obligation to extend care without discrimination to wounded and sick
military personnel and respect for and marking of medical personnel transports and equipment
with the distinctive sign of the Red Cross on a white background.

The United Nations (UN)

Fifty nations met in San Francisco in 1945 and formed the United Nations to protect and
promote peace.World War II had rage from 1939 to 1945, and as the end drew near, cities
throughout Europe and Asia lay in smoldering ruins. Millions of people were dead, millions more
homeless or starving. Russian forces were closing in on the remnants of German resistance in
Germany’s bombed-out capital of Berlin. In the Pacific, US Marines were still battling entrenched
Japanese force on such islands as Okinawa.

On April 1945, delegates from fifty countries met in San Francisco full of optimism and
hope. The goal of the UN Conference on International Organization was to fashion an international
body to promote peace and prevent future wars. The ideals of the organization were stated in the
preamble to its proposed charter: “We the peoples of the United Nations are determined to save
succeeding generations from the scourge of war, which twice in our lifetime has brought untold
sorrow to mankind.” The Charter of the new UN organization went into effect on October 24, 1945,
a date that is celebrated each year as United Nations’ Day.

LESSON 2: FREEDOM AND HUMAN RIGHTS

Freedom VS. Human Rights

Rights and the term freedom appear at various places in constitutions around the world.
In fact, Freedom is one of the core concepts of the American constitution (and the Philippines as
well). Frequently, the terms are interchangeable. In most scenarios, they mean the same thing.
In fact, taking away someone’s right means taking away their freedom as well. The main difference
between a right and freedom is a right is an entitlement of a given thing. For example, a person
working at a job has a right to receive their salary as per the contract. However, freedom refers to
the state in which a government cannot restrict a person from performing a certain activity.
However, this activity has to be within the bounds of the law.
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What are Rights?

A right is an entitlement that one receives when one becomes part of society. Human can
get different types of rights throughout their lives depending on various factors. A few factors are:

▪ Age
▪ Nationality
▪ Occupation
▪ Education

A right can be given based on the economic, social and political standing of an individual.
A country confers national rights to a citizen. These rights are a core component of a country’s
constitution. A few common rights that are given to a citizen by their government is:

An individual receives rights because they are human. These are known as human rights.
Human rights were the creation of the United Nations. The meeting wherein the outline of Human
Rights was given under the guidance of Eleanor Roosevelt. Human rights include:

▪ Right to freedom of life

▪ Right against slavery
▪ Right against inhuman treatment and torture
▪ Right to equality
▪ Right to a fair trial and many more.

What is Freedom?

Freedom is a state of being where a person can carry out different activities without
interference from other individuals or authority. This is an emotional entity. It is also objective. This
means that the term freedom can mean different things for different people. People can have a
different perception of freedom depending on different factors. They are:

▪ Upbringing
▪ Education
▪ Location
▪ Occupation
▪ Race

Freedom is a product of rights. This means that a person can receive freedom only when
he or she has been given rights. Freedom is also an essential component of human society.
Freedom allows one to live a happier and a healthier life. It is a requirement for one to express
themselves.

Main Difference Between Rights and Freedom

▪ A right has a legal binding. It is a privilege that a country or an institution gives to an individual
for being a part of it. Freedom is a state of being.

▪ A right is an objective. However, Freedom is subjective. It differs from person to person.

▪ A right is an important component of the constitution. A person receives at different times.

Freedom is given to a person at the time of their birth.

▪ A right cannot be taken away from a person unlawfully. However, Freedom can be taken
away unlawfully as well as lawfully.

POLICE POWER

It is the capacity of the states to regulate behavior and enforce order within their territory
for the betterment of the health, safety, morals and general welfare of their inhabitants. Police
power is defined in each jurisdiction by the legislative body, which determines the public purposes
the need to be served by legislation.

STATE AND NON-STATE ACTORS ON HUMAN RIGHTS

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Non - State Actors

Under traditional approaches to Human Rights, Non-State actors are beyond the direct
reach of international human rights law. They cannot be parties to the relevant treatise and so
they are only bound to the extent that obligations accepted by states can be applied to them by
governments. The result is that entities including non-governmental organizations, international
organizations such as the UN, private security contractors, and transnational corporations, along
with many others, are generally considered not to be bound directly by human rights law.

LESSON 3: UNIVERSAL DECLARATION ON HUMAN RIGHTS

On October 24, 1945, in the aftermath of World War II, the UN came into being as an
intergovernmental organization, with the purpose of saving future generations from the
devastation of international conflict.

UN representatives from all regions of the world formally adopted the Universal
Declaration of Human Rights on December 10, 1948.

The Charter of the UN established six principal bodies, including the general assembly,
the Security Council, the International Court of Justice, and in relation to human rights, an
Economic and Social Council (ECOSOC).

The UN Charter empowered ECOSOC to establish “commissions in economic and social

fields and for the promotion of human rights…” One of these was the United Nations Human
Rights Commission, which, under the chairmanship of Eleanor Roosevelt, saw to the creation of
the UDHR.

The Declaration was drafted by representatives of all regions of the world and
encompassed all legal traditions. Formally adopted by the UN on December 10, 1948, it is the
most universal human rights documents in existence, delineating the thirty fundamental rights that
form the basis for a democratic society.

Following the historic act, the Assembly called upon all member countries to publicize the
next of the declaration and “to cause it to be disseminated, displayed, read and expounded
principally in schools and other educational institutions, without distinction based on the political
status of countries or territories.”

Today, the Declaration is a living document that has been accepted as a contract between
a government and its people throughout the world. According to the Guinness Book of World
Records, it is the most translated document in the world.

The UDHR has inspired a number of other human rights laws and treatise throughout the
world.

Structure and Content

The underlying structure of the Universal Declaration was influenced by the Code of
Napoleon, including a preamble and introductory general principles. Its final structure took form
in the second draft prepared by French jurist Rene Cassin, who worked on the initial draft
prepared by Canadian legal scholar John Peters Humphrey.

The Declaration consists of the following:

▪ The preamble sets out the historical and social causes that led to the necessity of drafting
Declaration.
▪ Articles 1-2 establish the basic concepts of dignity, liberty and equality.

▪ Articles 3-5 establish other individual rights, such as the right to life and the prohibition of
slavery and torture.
▪ Articles 6-11 refers to the fundamental legality of human rights with specific remedies cited
for their difference when violated.
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▪ Articles 12-17 set forth the rights of the individual towards the community, including freedom
of movement and residence within each state, the right of property and the right to a
nationality.
▪ Articles 18-21 sanction to the so-called “constitutional liberties” and spiritual, public, and
political freedoms, such as freedom of thought, opinion, expression, religion and conscience,
word, peaceful association of the individual, and receiving and imparting information and
ideas through any media.

▪ Articles 22-27 sanction an individual’s economic, social and cultural rights, including
healthcare. It upholds an expansive right to an standard of living, provides for additional
accommodations in case of physical debilitation or disability, and makes special mention of
care given to those in motherhood or childhood.
▪ Articles 28-30 establish the general means of exercising these rights, the areas in which the

rights of the individual cannot be applied, the duty of the individual to society, and the
prohibition of the use of rights in contravention of the purposes of the United Nations
Organization.

History
During World War II, the Allies (formally known as the United Nations) adopted as their
basic war aims the four freedoms: Freedom of Speech, Freedom of Religion, Freedom from Fear
and Freedom from Want. Towards the end of the war, the United Nations Charter was debated,
drafted, and ratified to reaffirm “faith in fundamental human rights, and dignity and worth of the
human person” and commit all member states to promote universal respect for, and observance
of human rights and fundamental freedoms for all without distinction as to race, sex, language or
religion. When the atrocities committed by Nazi Germany became fully apparent after the war, the
consensus within the world community was that the UN charter did not sufficiently define the rights
to which it referred. It was deemed necessary to create a universal declaration that specified the
rights of individuals so as to give effect to the Charter’s provisions on human rights.

Bill of Rights and Constitutional Rights of the Philippines

Bill of rights is located in Article III of the 1987 Philippine Constitution. The rights were
discussed in the following:

Section 1: No person shall be deprived of life, liberty and property without due process of law,
nor shall any person be denied for the equal protection of the laws.

Section 2: The right of the people to be secured in their persons, houses, papers and other effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and things to be seized.

Section 3: (1) The privacy of communication and correspondence shall be inviolable except upon
lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible
for any purpose in any proceeding.

Section 4: No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble the petition the government for redress of
grievances.

Section 5: No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination and preference, shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.

Section 6: the liberty of abode and of changing the same within the limits prescribed by law shall
not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety, or public health, as may be provided by
law.

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Section 7: The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents and papers pertaining to official acts, transactions,
or decisions, as well as to government research data used as basis for policy development, shall
be afforded the citizen, subject to such limitations as may be provided by law.

Section 8: The right of the people, including those employed in the private and public sectors, to
form unions, Associations, or societies for purposes not contrary to law shall not be abridged.

Section 9: Private property shall not be taken for public use without just compensation.

Section 10: No law impairing the obligation of contracts shall be passed.

Section 11: Free access to the courts and quasi – judicial bodies and adequate legal assistance
shall not be denied to any person by reason of poverty.

Section 12: (1) Any person under investigation for the commission of an offenses hall have the
right to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate
the free-will shall be used against him. Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall
be inadmissible as evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as
well as compensation to and rehabilitation of victims of torture or similar practices, and their
families.

Section 13: All persons, except those charged with offenses punishable by Reclusion Perpetua
when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by law. The right to bail shall not be impaired even
when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

Section 14: (1) No person shall be held to answer for a criminal offense without due process of
law.

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary
is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy, impartial and public trial, to
meet the witnesses face to face, and to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the accused provided that he has been duly notified and
his failure to appear is unjustifiable.

Section 15: The privilege of the writ of habeas corpus shall not be suspended except in cases of
invasion or rebellion when the public safety requires it.

Section 16: All persons shall have the right to a speedy disposition of their cases before all
judicial, quasi-judicial, or administrative bodies.

Section 17: No person shall be compelled to be a witness against him.

Section 18: (1) No person shall be detained solely by reason of his political beliefs and
aspirations.

(2) No involuntary servitude in any form shall exist except as a punishment for a crime
whereof the party shall have been duly convicted.

Section 19: (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall the death penalty be imposed, unless, for compelling reasons
involving heinous crimes, the Congress hereafter provides for it. Any death penalty already
imposed shall be reduced to reclusion perpetua.

(2) The employment of physical, psychological or degrading punishment against any

prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman
conditions shall be dealt with by law.
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Section 20: No person shall be imprisoned for debt or non-payment of a poll tax.

Section 21: No person shall be twice put in jeopardy of punishment for the same offense. If an
act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a
bar to another prosecution of the same act.

Section 22: No ex post facto law or bill of attainder shall be enacted.

RIGHTS OF AN ACCUSED (Rule 115, Revised Rules of Court)

Section 1: Rights of an accused at the trial. – In all criminal prosecutions, the accused shall be
entitled to the following rights:

(a) To be presumed innocent until the contrary is proved beyond reasonable doubt.

(b) To be informed of the nature and cause of the accusations against him.

(c) To be present and defend in person and by counsel at every stage of the proceedings, from
arraignment to promulgation of the judgment, the accused may, however, waive his presence
at the trial pursuant to the stipulations set forth, unless his presence is specifically ordered by
the court for purposes of identification. The absence of the accused without justifiable cause
at the trial which he had noticed shall be considered a waiver of his right to be present thereat.
When an accused under custody escapes, he shall be deemed to have waived his right to be
present on all subsequent trial dates until custody over him is regained. Upon motion, the
accused may be allowed to defend himself in person when it is sufficiently appear to the court
that he can properly protect his rights without the assistance of counsel.

(d) To testify as a witness in his own behalf but subject to cross-examination on matters covered
by direct examination. His silence shall not in any manner prejudice him.

(e) To be exempt from being compelled to be a witness against himself.

(f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize
as part of its evidence the testimony of a witness who is deceased, out of or cannot with with
due diligence be found in the Philippines, unavailable or otherwise unable to testify, given in
another case or proceeding, judicial or administrative, involving the same parties and subject
matter, the adverse party having the opportunity to cross examine him.

(g) To have compulsory process issued to secure the attendance of witnesses and production of
other evidence in his behalf.

(h) To have speedy, impartial and public trial.

(i) To appeal in all cases allowed and in the manner prescribed by law.

Republic Act No. 8371 – An Act to Recognize, Protect and Promote the Rights of
Indigenous Cultural Communities/Indigenous Peoples, Creating a National Commission
on Indigenous Peoples, Establishing, Implementing Mechanisms, Appropriating Funds
Therefor, and for Other Purposes (Long title)

- It is also known as “The Indigenous People’s Rights Act of 1997”. (Short title)

Section 2. (c) The state shall recognize, respect and protect the rights of Indigenous Cultural

Communities/Indigenous Peoples (ICCs/IPs) to preserve and develop their cultures, traditions

and institutions. It shall consider these rights in the formulation of national laws and policies.

(d) The state shall guarantee that member of the ICCs/IPs regardless of sex, shall
equally enjoy the full measure of human rights and freedoms without distinction or discrimination.

(e) The state shall take measures, with the participation of the ICCs/IPs concerned, to
protect their rights and guarantee respect for their cultural integrity, and to ensure that members
of the ICCs/IPs benefit on equal footing from the rights and opportunities which national laws and
regulations grant to other members of the population..

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Section 7. Rights to Ancestral Domains. – The rights of ownership and possession of ICCs/IPs
to their ancestral domains shall be recognized and protected. Such rights shall include:

a. Right of Ownership – The right to claim ownership over lands, bodies of water
traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing
grounds, and all improvements made by them at any time within the domains;

b. Right to Develop Lands and Natural Resources –Right to develop, control and use
lands and territories traditionally occupied, owned, or used…

c. Right to Stay in the Territories – The right to stay in the territory and not to be removed
therefrom. No ICCs/IPS will be relocated without their free and prior informed consent, nor through
any means other than eminent domain.

d. Right in Case of Displacement – In case displacement occurs as a result of natural

catastrophes, the State shall endeavor to resettle the displaced ICCs/IPs in suitable areas where
they can have temporary life support systems.

e. Right to Regulate Entry of Migrants f. right to Safe and Clean Air and Water

g. Right to Claim Parts of Reservations – The right to claim parts of ancestral domains
which have been reserved for various purposes, except those reserved and intended for common
public welfare and service.

h. Right to Resolve Conflict – Right to resolve land conflicts in accordance with customary
laws of the area where the land is located.

Section 8. Rights to Ancestral Lands. – The right of ownership and possession of the ICCs/IPs
to their ancestral lands shall be recognized and protected.

a. Right to transfer land/property – Such right shall include the right to transfer land or
property rights to/among members of the same ICCs/IPs.

b. Right to Redemption - In cases where it is shown that the transfer of land or property
rights by virtue of any agreement or advise, to a non – member of the concerned ICCs/IPs is
tainted by the vitiated consent of the ICCs/IPs.

LESSON 3: UNITED NATIONS and INTERNATIONAL HUMANITARIAN LAW

United Nations

Is an intergovernmental organization aiming to maintain international peace and security,

develop friendly relations among nations, achieve international cooperation, and be a center for
harmonizing the actions of nations. It is the world’s largest, most familiar, most representative,
and most powerful international organization. The UN is headquartered on international territory
in New York City and has other main offices in Geneva, Nairobi, Vienna and The Hague.

The UN was established after World War II with the aim of preventing future wars,
succeeding the ineffective League of Nations. On April 25, 1945, 50 governments met in San
Francisco for a conference and started drafting the UN charter, which was adopted on June 25,
1945 and took effect on October 24, 1945, when the UN began operations. Pursuant to the
charter, the organization’s objectives include maintaining international peace and security,
protecting human rights, delivering humanitarian aid, promoting sustainable development, and
upholding international law.

Its current Secretary-General is a Portuguese politician and diplomat Antonio Guterres,

who began his first five-year term on January 01, 2017 and was reelected on June 08, 2021.
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The UN has six principal organs: the General Assembly; the Security Council; the
Economic and Social Council (ECOSOC); the Trusteeship Council; the International Court
of Justice; and the UN Secretariat.

UN GENERAL ASSEMBLY (UNGA) or (GA)

Serves as the main deliberative, policy making, and representative organ of the UN. Its
powers, composition, functions and procedures are set out in Chapter IV of the UN Charter. They
are responsible for the UN budget, appointing the non-permanent members to the Security
Council, appointing the Secretary-General of the UN, receiving reports from other parts of the UN
system, and making recommendations through resolutions. The GA is the only UN organ wherein
all member states have equal representation.

UN SECURITY COUNCIL (UNSC)

Charged with ensuring international peace and security, recommending the admission of
new UN members to the General Assembly, and approving any changes to the UN charter. Its
powers include establishing peacekeeping operations, enacting international sanctions, and
authorizing military action. The UNSC is the only UN body with the authority to issue binding
resolutions on member states.

ECONOMIC AND SOCIAL COUNCIL (ECOSOC)

French: Conseil Economique et Social Des Nations Unies (CESNU)

It is one of the six principal organs of the United Nations, responsible for coordinating the
economic and social fields of the organization, specifically in regards to the fifteen specialized
agencies, the eight functional commissions and the five regional commissions under its
jurisdictions.

ECOSOC serves as the central forum for discussing international economic and social
issues and formulating policy recommendation addressed to member states and the United
Nations system.

The council consists of 54 Member States, which are elected yearly by the General
Assembly for overlapping three-year terms. The President of the council is elected for a one-year
term and chosen from the small or medium sized states represented on the council at the
beginning of each new session.

UN TRUSTEESHIP COUNCIL (UNTC) French: Conseil de tutelle des Nations unies

Established to help ensure that trust territories were administered in the best interests of
their inhabitants and of international peace and security. The trust territories – most of them former
mandates of the League of Nations or territories taken from nations defeated at the end of World
War II – have now all attained self –government or independence, either as separate nations or
by joining neighboring independent countries.

INTERNATIONAL COURT OF JUSTICE (ICJ) French: Cour Internationale de justice

Sometimes known as World Court. It settles disputes between states in accordance with
international law and gives advisory opinions on international legal issues. The ICJ is the only
international court that adjudicates general disputes between countries, with its rulings and
opinions serving as primary sources of international law.

The ICJ is the successor of the Permanent Court of International Justice (PCIJ), which
was established in 1920 by the League of Nations. After the second World War, both the league

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and the PCIJ were replaced by the UN ICJ, which sets forth its purpose and structure, draws
heavily from that of its predecessor, whose decisions remain valid.

The ICJ consists of a panel of 15 judges elected by the UN General Assembly and Security
Council for nine-year terms. No more than one nationality may be represented on court at the
same time, and judges collectively must reflect the principal civilizations and legal systems of the
world. Its working languages are English and French.

UN SECRETARIAT French: Secretariat des Nations unies

It is the UN’s executive arm. The Secretariat has an important role in setting the agenda
for the deliberative and decision-making bodies of the UN (GA, ECOSOC and UNSC), and the
implementation of the decision of these bodies. The Secretary-General, who is appointed by the
General Assembly, is the head of the Secretariat.

THE INTERNATIONAL HUMANITARIAN LAW (IHL)

It is the international Law of Armed Conflict (LOAC), with two general objectives and areas
of concern regarding armed conflict:

▪ As to protection of its victims (Geneva Law or Red Cross Law); and

▪ as to limitation of its methods and means of warfare (Hague Law).

Human rights and humanitarian law are two distinct and yet closely related branches of the
international legal system.

Concept

▪ Its provisions are intended both to protect people who are not or no longer taking part in
hostilities as well as to restrict the methods and means used to wage war.

▪ Its purpose is to limit the suffering war causes by affording victims the maximum possible
protection and assistance.

Scope

▪ The greater part of international humanitarian law applies to situations involving international
armed conflicts waged between subjects of international law.

▪ While there are only limited rules concerning non-international armed conflicts, i,e. Conflicts
within a country, they, too, are considered of great importance.

Key Principles

▪ Underlying all norms in the area of humanitarian international law is the effort to find a
balance between the conflicting interests of military necessity on the one hand and
humanity on the other.

This gives rise to the following key principles:

▪ Neither the conflicting parties no members of their armed forces have unlimited freedom in
the choice of methods and means with which to wage war.

▪ Hence the use of weapons and methods which inflict excessive injuries and unnecessary
suffering is forbidden.

To protect the civilian objects, these must in all circumstances be a clear distinction made between
civilians and combatants.

▪ Neither the civilian population as a whole nor individual civilians may be attacked.

▪ Attacks must be aimed exclusively at military targets.

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Combatants and civilians in the power of an opposing party have the right to have their lives and
dignity respected.

They must be protected from any violence or repressive measures.

It is prohibited to kill or injure an adversary who surrenders or is unable to continue fighting.

Institutions

International Committee of the Red Cross (ICRC).

▪ Red Cross ▪ Red Crescent

Although it is an association under Swiss law based in Geneva, it has international legal
personality in a number of aspects.

In institutions of civil war, too, the ICRC is entitled under article 3 of the Geneva conventions to
offer its services to the warring parties.

The basic pre-requisite for its work is strict impartially and neutrality.

Together with the International Federation of Red Cross and Red Crescent Societies, the ICRC
and the National Red Cross and Red Crescent Societies from the International Red Cross and
Red Crescent Movement.

Its representatives meet with the representatives of the States Parties to the Geneva Conventions
at the International Red Cross and Red Crescent conferences that are usually held every four
years.

What is International Humanitarian Law?

▪ This body of law can be defined as the principles and rules which limit the use of violence
in times of armed conflict.

Essential Rules

▪ Neither the parties to the conflict nor members of their armed forces have an unlimited right
to choose methods and means of warfare. It is forbidden to use weapons or methods of
warfare that are likely to cause unnecessary losses or excessive suffering.

▪ The wounded and sick must be collected and cared for by the party to the conflict which has
them in its power. Medical personnel and medical establishments, transports and
equipment must be spared. The red cross or red crescent on a white background is the
distinctive sign indicating that such persons and objects must be respected.

▪ Captured combatants and civilians who find themselves under the authority of the adverse
party are entitled to respect for their lives, their dignity, their personal rights and their
political, religious and other convictions. They must be protected against all acts of
violence or reprisal. They are entitled to exchange news with their families and receive
aid. They must enjoy basic judicial guarantees.

Three (3) main currents

1. The “Law of Geneva”, represented by the international conventions and protocols

established under the aegis of the International Committee of the Red Cross (ICRC) with the
protection of the victims of conflict as their central concern;

2. The “Law of The Hague”, based on the results of the peace conferences in the capital of
the Netherlands in 1899 and 1907, which dealt principally with the permissible means and
methods of war;

3. The efforts of the UN to ensure that human rights are respected in armed conflicts and to
limit the use of certain weapons.

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Commission on Human Rights (CHR) Powers:

▪ Investigative – political and civil

▪ Compulsory processes
▪ Provide legal measures
▪ Legal aid
▪ Jail and detention center monitoring
▪ Research programs
▪ Government compliance monitoring

Human Rights’ Protection

▪ Investigation and Hearing Complaints

▪ Legal aid and counselling
▪ Legal research
▪ Assistance to Human Rights Victims
▪ Visitorial services
▪ Child rights protection services
▪ Special prosecutor system

What is Armed Conflict, when does it exist?

a. Between states, and between states and national liberation movements. (International Armed
Conflict)

Ex. World War II; between Israel and PLO

b. Between governmental authorities and organized armed groups. (Non-International Armed

Conflict or NIAC)

Ex. AFP vs. NPA

c. Between organized armed groups within state. (NIAC)Ex. NPA vs. Rebolusyonaryong Hukbong
Bayan

What are the main kinds of IHL? What is the significance of this?

1. Treaty Law – Treaties, conventions, protocols and similar international legal instruments
– binding on States Parties which ratify or accede.

2. Customary Law – Generally accepted principles and rules established by sufficient state
practice and legal opinion, which are binding on all, particularly on all parties (including non-state
armed groups) to armed conflicts in the case of customary IHL.

How does IHL relates to Human Rights (HR)? What are their distinctions?

1. Relations governed

HR – Between state and individual, for protection of the individual from state power and abuse
(recent legal trends to cover protection from non-state armed group abuse).

IHL – Between parties in armed conflict, in between both/all of them and affected civilians or non-
combatants, for their protection and, to some extent, also for the protection of combatants from
certain methods and means (weapons) of warfare.

2. Obliged parties

HR – The state, recently also non-state actors IHL – Both parties, state or non-state armed
group.

3. Time applicability

HR – At all times, in peace and in war, but some derogation allowed all times in public emergency.
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IHL – In times of armed conflict, no derogation under any circumstances therein; some limited
application, like promotion measures, in peace time.

4. Place applicability

HR – In all places globally

IHL – In areas of armed conflict

5. Main treaty sources

HR – HR treaties

IHL – IHL treaties

How does IHL become part of the Philippine Legal System?

1. Customary IHL, and the incorporation clause of the Philippine Constitution which provides
that the Philippines adopts the generally accepted principles of international law as part of the law
of the land.

2. Treaty IHL, and the treaty clause of the Phil. Constitution which provides that no treaty or
international agreement shall be valid and effective unless (its ratification by the President has
been) concurred by in at least two-thirds of all the members of the Senate.

3. Implementing legislation and/or administrative action –where necessary for

implementation, such as with ratified treaty provisions that are not self-executory, usually those
requiring the imposition of penal sanctions.

4. Special agreements on IHL between the Philippine government and different rebel groups
– are technically not part of the legal system but are similar to civil contracts in the sense of being
“the law between parties.”

5. Unilateral declarations of adherence to IHL by Philippine rebel groups – are more so

technically not part of the legal system but can likewise be invoked with the rebel groups which
issue them.

What are the Fundamental Principles of IHL?

These are not mere abstract concepts but are of valuable practical application to various situations
in the field.

▪ Distinction ▪ Proportionality ▪ Limitation ▪ De Martens Clause

Principle of Distinction

▪ Most basic principle of IHL which is for the parties to the conflict to distinguish between
combatants and civilians, and between military objectives and civilian objects.

▪ Indiscriminate attacks are those which: (a) are not directed at a specific military objective;
(b) employ a method of means of combat which cannot be directed at a specific military
objective; and (c) employ a method or means of combat the effects of which cannot be
limited as required by the rules of war.

Consequently, the following, are prohibited:

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Acts or threats of violence, the primary purpose of which is to spread terror among the
civilian population

(concept of terrorism)

▪ Attacks by bombardment which treats as a single military objective a number of clearly

separated and distinct military objectives in a city, town, village, or other area containing
a concentration of civilians or civilian objects.

▪ Indiscriminate attacks are prohibited, and so are the use of weapons which are by nature
indiscriminate. This is the main principle for civilian protection.

Principle of Proportionality

▪ Proper balancing of the conflicting interests between military necessity and humanitarian
considerations.

▪ Among several military objectives for obtaining a similar military advantage, the objective
selected should be the one where the attack may be expected to cause the least danger
to civilians and civilian objects.

It is prohibited to launch an attack which may be expected to cause incidental loos of (collateral
damage) civilians and civilian objects which would be excessive in relation to the military
advantage anticipated.

There must therefore be various precautions in attack as well as against the effects of attacks.

The principle of proportionality is also reflected in two concepts:

1. Is the prohibition of causing superfluous injury tounnecessary suffering, especially as

applied to means and methods of warfare.

2. Is the weighing of not only humanitarian but also socioeconomic and (natural)
environmental consequences visà-vis military utility, much like the weighing of costs and benefits
or of ends and means.

Principle of Limitation

Basic rule that the right of the parties to the conflict to choose methods or means of warfare
is not unlimited. As the saying goes, “Even War Has its Limits.” IHL then provides both general
and specific limitations or restraints.

Principle of De Martens Clause

▪ “Fall Back” principle, “in cases not covered by the Regulations… the inhabitants and
belligerents remain under the protection and the rule of principles of the law of nations,
as they result from the usages established among civilized peoples, form the laws of
humanity, and the dictates of the public conscience.”

▪ Note not only civilized usages and sense of humanity but also the public conscience
(thus, public opinion to some extent) as guides or “fall backs” in the absence of specific
rules.

Civilians and Combatants

Civilians – Are person who are not members of the armed forces of a party to an armed conflict,
and are protected against attack, unless and for such time as they take a direct part in armed
hostilities.

Combatants – Are all members of such armed forces usually or international armed conflicts,
except medical and religious personnel.
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Civilian Objects and Military Objects

Civilian Objects are all objects that are not military objectives and protected against attack,
unless and such time as they are military objectives.

Some examples of civilian objects are houses, schools, churches, farms, commercial buildings,
industrial plants, power transmission towers, cell sites, public transports, other civilian
infrastructures and also cultural properties.

Military Objectives are limited to those objects which, by their nature, location, purpose or use,
make for an effective contribution to military action and whose destruction, capture or
neutralization, under the circumstances, offers a definite military advantage.

Who is a person “Hors de Combat”?

▪ He or she is a person “out of combat”, including a combatant who is no longer in a condition

to engage in combat. More specifically, anyone who:

is in the power (like captive) of an adverse party;

is defenseless because of consciousness, shipwreck, wounds or sickness; or

clearly expresses an intention to surrender; provided he or she abstains from any

hostile act and does not attempt to escape.

The fundamental guarantees for the treatment of civilians and persons Hors de Combat:

▪ They must be treated humanely.

▪ The following are all prohibited:

Any form of adverse discrimination

Murder

Torture, cruel or inhuman treatment, and outrages upon personal dignity, in

particular humiliating and degrading punishment

Corporal punishment

Mutilation, medical or scientific experiments, or any other medical procedure not

indicated by the state of the health of the person concerned and not consistent
with generally accepted medical standards.

Rape and other forms of sexual violence

Slavery and slave trade in all their forms

Uncompensated or abusive forced labor

Hostage-taking

Use of human shields

Enforced disappearance

Arbitrary deprivation of liberty

Collective punishments

Basic rules for protection of persons deprived of their liberty:

They must be provided with adequate food, water, clothing, shelter, and medical attention.

Women must be held in quarters separate from those of men, except where families are
accommodating as family units, and must be under the immediate supervision of women.

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Children must be held in quarters separate from those of adults, except where families
are accommodating as family units.

They must be held in premises which are removed from the combat zone and which
safeguard their health and hygiene.

Pillage of their personal belongings is prohibited

Their personal details must be recorded

They must be allowed to correspond with their families, subject to reasonable conditions
relating to frequency and the need for censorship by the authorities.

They must be allowed to receive visitors, especially near relatives, to the degree
practicable

Legal remedies in cases of Enforced Disappearances and Extra-Judicial Killings (EJK)

1. Writ of Habeas Corpus (WOHC)

Is a Latin phrase which literally means “you have the body.” The writ is an order to the
person in charge of someone’s detention to deliver the named person so that the court can
investigate the legality of his imprisonment. Basically, it is a writ directed to the person detaining
another, commanding him to produce the body of the prisoner at the designated time and place
and explain the cause of his detention. The WOHC generally extends to all cases of illegal
confinement or detention by which a person is deprived of liberty, or the rightful custody of a
person is withheld from the person entitled to it.

2. Writ of Amparo (WOA)

The Writ of Amparo is of Mexican origin. Amparo means protection from the Spanish word
“Amparar”. It is a remedy available to any person whose right to life, liberty and security has been
violated or is threatened with violation by an unlawful act or omission of a public official/employee,
or of a private individual or entity.

The writ is issued in cases of EJK and Enforced Disappearances or threats thereof.

3. Writ of Habeas Data (WOHD)

The WOHD is a remedy available to any person who’s the right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission of a public official or private
individual. The WOHD enables the petitioner to invoke the right to privacy and right to information.

LESSON 4: MEANS AND METHODS OF WARFARE

International Humanitarian Law

▪ Protects all persons who are not, or no longer participating in the hostilities, as well as certain
places and objects.

▪ Restricts the rights of the warring parties to use the means and methods of warfare of their
choice.

Limitations on means and methods of warfare

▪ The right of the parties to the conflict to choose methods and means of warfare are
not unlimited.
(Art. 22, Hague Law)
▪ It is prohibited to employ means and methods of warfare of a nature to cause
superfluous injury or unnecessary suffering. (Art. 23, Hague Law)
▪ Parties of a conflict must all times distinguish between civilians and combatants.
▪ Indiscriminate attacks are prohibited.
▪ Weapons that inherently indiscriminate of have indiscriminate effects must not be
used.
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▪ It is prohibited to employ methods or means of warfare which are intended or may be

expected to cause widespread, long-term and severe damage to the natural
environment.

Declaration of St. Petersburg (1868)

▪ That the only legitimate object which States should endeavor to accomplish during
war is to weaken the military forces of the enemy;
▪ that for this purpose it is sufficient to disable the greatest possible number of men;
▪ that this object would be exceeded by the employment of arms which uselessly
aggravate the sufferings of disabled men, or render their death inevitable;

▪ that the employment of such arms would, therefore, be contrary to the laws of
humanity.

Prohibition to cause superfluous injury or unnecessary sufferings

▪ Requires that a balance be struck between military necessity and the expected injury or
suffering inflicted.
▪ Excessive injury or suffering, that which is out of proportion to the military advantage sought.

Martens Clause

In cases not covered by international agreements, civilians and combatants remain under
the protection of the principles of international law derived..

▪ from established customs

▪ from the principles of humanity, and
▪ from the dictates of public conscience

Regulation of Specific Weapons

▪ exploding bullets
▪ expanding bullets
▪ poison
▪ chemical weapons
▪ biological weapons
▪ non-detectable fragments
▪ blinding laser weapons
▪ cluster munitions

▪ mines, booby traps and other similar explosive devices, and

▪ incendiary weapons

Police Station Checklist on Human Rights-Based Policing

1. Number of Profile of Personnel with:

• Basic and advanced training in human rights

• Human rights modules in mandatory and special courses
• Additional human rights seminars, workshops, and training conducted by the CHR
• Additional human rights seminars, workshop, training conducted by NGOs and foreign
organization

2. Number of Custodial Detention Facilities/Lock-up Cells Inspected:

• Are there separate facilities for men, women, and children?

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• Is there a regularly updated database on detainees including their complete name,

address, age, sex, nature of crime, status of case or investigation, date of inquest,
release or transfer to jail, contact details of lawyer or family, etc.?
• Is the custodial detention facilities/lock-up cells clean, safe and secure?
• Are detainees confined in facilities that pose no threat to their health and safety?
• Excessive use of force.

3. Number of Profile and Complaints of Alleged Human Rights Violations such as: Illegal
Arrest

• Illegal Detention
• EJK or Summary executions
• Enforced Disappearances
• Other human rights violations

4. Number and status of alleged cases of human rights violations investigated or handled by
the police station.

5. Display of posters and information materials on Rights of Person Arrested, Detained or

under Investigation (R.A 7438) at the police station and other PNP offices.

6. Display the posters inside the investigation room, near custodial detention facilities, and
other prominent locations inside the police station.

7. Preparation on Human Rights Desk Workflow and directory of other PNP units and
government agencies involved in human rights protection.

8. Human rights promotion/protection action plan (police station level)

9. Coordination with Brgy. Human Rights Action Officer(BHRAO) on joint human rights plans
and activities; protective services to victims of human rights violations; and other mission-
essential tasks related to human rights promotion and protection at the community level.