Human Rights Midterms Reviewer under Atty. Principe

HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

GENERAL NATURE AND DEFINITION OF HUMAN RIGHTS Human Rights  Those rights, which are inherent in our nature, and without which, we cannot live as human beings.  Allow us to develop and use our human qualities, intelligence, talents and conscience, and to satisfy our spiritual and other needs.  Supreme, inherent, and inalienable rights to life, dignity, and self-development.  The essence of these rights makes man human. Basic Characteristics of Human Rights: 1. Inherent  Not granted by any person or authority 2. Fundamental  Without them, the life and dignity of man will be meaningless 3. Inalienable  Cannot be rightfully taken away from a free individual  Cannot be given away or be forfeited 4. Imprescriptible  Cannot be lost even if man fails to use or assert them, even by a long passage of time 5. Indivisible  Not capable of being divided  Cannot be denied even when other rights have already been enjoyed 6. Universal  Applies irrespective of one’s origin, status, or condition or place where one lives  Rights can be enforced without national border 7. Interdependent

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HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

 The fulfillment or exercise of one cannot be had without the realization of the other Human Rights Principles:  The dignity of man and human life is inviolable. From the dignity of man is derived the right of every person to free development of his personality.  A legitimate state should exist to assure that in the discharge of the governmental functions, the dignity that is the birthright of every human being is duly safeguarded. Classification of Rights: According to Source 1. Natural Rights  God-given rights, acknowledged by everybody to be morally good  Unwritten, but prevail as norms of the society 2. Constitutional Rights  Conferred and protected by the Constitution and which cannot be modified or taken away by the law-making body 3. Statutory Rights  Those rights which are provided by law promulgated by the law-making body  May be abolished by the body that created them According to Recipient 1. Individual Rights  Accorded to individuals 2. Collective Rights  Also called “people’s rights” or “solidarity rights”  Rights of the society, those that can be enjoyed only in company with others According to Aspect of Life 1. Civil Rights  Rights which the law will enforce at the instance of private individuals for the purpose of securing to them the enjoyment of their means of happiness Stephanie Luzette M. MacapagalPage 2

HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

 Partake of the nature of political rights when they are utilized as a means to participate in the government 2. Political Rights  Rights which enable us to participate in running the affairs of the government either directly or indirectly 3. Economic and Social Rights  Those which the law confers upon the people to enable them to achieve social and economic development 4. Cultural Rights  Rights that ensure the well-being of the individual and foster the preservation, enrichment, and dynamic evolution of national culture based on the principle of unity in diversity in a climate of free artistic and intellectual expression. According to Struggle for Recognition 1. First Generation Rights  Civil and political rights which derives primarily from the 17th and 18th centuries’ reformist theories  Conceives of human rights more in negative (“freedom from”) than positive (“rights to”) terms  Favors the abstention rather the intervention of government in the exercise of freedoms and in the quest for human dignity 2. Second Generation Rights  Covers economic, social, and cultural rights which find their origin primarily in the socialist tradition  Conceives of human rights more in positive terms  Fundamental claims to social equality 3. Third Generation Rights  Covers collective rights According to Derogability 1. Absolute or Non-Derogable Rights

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HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

 Those that cannot be suspended nor taken away nor restricted/limited even in extreme emergency and even if the government invokes national security 2. Derogable or Can-Be-Limited Rights  May be suspended or restricted or limited depending on the circumstances which call for the preservation of social life  Must satisfy three requirements for it to be valid: i. It is provided for by law which is made known to every citizen; ii. There is a state of emergency which necessitates the urgent preservation of the public good, public safety, and public moral; iii. It does not exceed what is strictly necessary to achieve the purpose. Categories of Human Rights 1. Fundamental Freedom in Political Rights i. Freedom of conscience and religion ii. Freedom of thought, belief, opinion and expression iii. Freedom of the press and communication iv. Freedom of association, freedom of peaceful assembly v. Rights to privacy, reputation, and human dignity 2. Democratic Rights  Commonly exercised in a democratic state i. Right to vote and to participate in the electoral process ii. Right to participate in public or governmental affairs 3. Mobility Rights  National and international in character i. Right to travel ii. Right to return to one’s country iii. Freedom of movement within the country 4. Right to Life, Liberty, and Security of the Person

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HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

 Represent the core of fundamental rights which relate to the right to physical and personal integrity, consistent with human dignity i. Right to protection against political and other extrajudicial killings, the disappearances of persons, and torture and other cruel inhuman or degrading treatment or punishment 5. Legal Rights  Constitute due process that can be invoked by persons accused i. Freedom from arbitrary arrest and detention ii. Protection against unreasonable search and seizure iii. Right to counsel iv. Right to fair and public trial v. Presumption of innocence vi. Right against self-incrimination 6. Rights of Equality  Also known as the right against discrimination  Everyone is equal before the law and is entitled to equal protection or the equal benefit of the law i. Protection against discrimination on the grounds of sex, race, religion, ethnic origin, age, marital status, and political and social condition 7. Economic, Social and Cultural Rights  Considered more of standards to be observed by the state i. Right to social security, social insurance, protection and assistance to the family ii. Right to an adequate standard of living, adequate food, clothing and housing iii. Right to physical and mental health iv. Right to education v. Right to be part of the artistic and scientific life of the country 8. Workers’ Rights Stephanie Luzette M. MacapagalPage 5

HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

i. Right to association ii. Right to organize unions iii. Right to bargain collectively iv. Prohibition of forced labor v. Prohibition of employment of children vi. Guarantee of minimum wages and other support 9. Aboriginal Rights  Associated with the rights of indigenous cultural tribes or communities 10. Reproductive Rights i. Right to found a family and bear children ii. Right to gender sensitivity and the biomedical technology iii. Right to family planning 11. Protective Rights of Persons in Armed Conflicts  Provided in the international humanitarian law for the protection of children, women and non-combatants during internal armed conflicts 12. Right of Self-determination i. Right of people to be free from colonial rule ii. Right of people to decide their own destiny 13. Minority Group Rights i. Protection of ethnic, linguistic and religious minorities Laguna Lake Development Authority v. CA, 231 SCRA 292 Facts: A letter-complaint was filed with the Laguna Lake Development Authority (LLDA), seeking to stop the operation of the open garbage dumpsite in the Tala Estate in Caloocan, due to its harmful effects on the health of the residents and the possibility of pollution of the water content of the surrounding area. It was discovered that the open dumpsite did not have an Environmental Compliance Certificate from the Environmental Management Bureau of the Department of Environmental and Natural Resources, as required under Presidential Decree No. 1586, and a clearance from the LLDA as required under Republic Act No. 4850. The LLDA then conducted an on-site investigation, monitoring and test sampling of the leachate that seeps from the said dumpsite to the nearby creek which is a tributary of the Marilao river. The leachate testing revealed the presence of bacteria. As a result, the LLDA issued a Cease and Stephanie Luzette M. MacapagalPage 6

HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

Desist Order ordering that the dumping of any form or kind of garbage and other waste matter at the Caloocan dumpsite be completely stopped. When talks on the dumpsite failed to settle the problem, the dumpsite was opened again, prompting the LLDA to issue another Cease and Desist Order. Thereafter, the LLDA, with the assistance of the Philippine National Police, enforced the Order by prohibiting the entry of all garbage dump trucks into the Caloocan dumpsite. The City Government of Caloocan then filed with the RTC of Caloocan City an action for the declaration of nullity of the Cease and Desist Order, and sought to be declared as the sole authority empowered to promote the health and safety and enhance the right of the people in Caloocan City to a balanced ecology within its territorial jurisdiction. Issues and Rulings: 1. Does the LLDA have the authority to entertain the complaint against the dumping of garbage in the open dumpsite in Caloocan authorized by its City Government which is allegedly endangering the health, safety, and welfare of the residents therein and the sanitation and quality of the water in the area brought about by exposure to pollution caused by such open garbage dumpsite? YES. The LLDA’s jurisdiction was validly invoked on the basis of the allegation that the open dumpsite of the City Government of Caloocan was undertaken without a clearance from the LLDA, as required by RA 4850. As a general rule, the adjudication of pollution cases generally pertains to the Pollution Adjudication Board, except in cases where the special law provides for another forum. It must be recognized that in this regard that the LLDA, by virtue of its special charter, obviously has the responsibility to protect the inhabitants of the Laguna Lake region from the deleterious effects of pollutants emanating from the discharges of wastes from the surrounding areas. In carrying out the national policy of promoting and accelerating the development and balanced growth of the Laguna Lake area and the surrounding provinces of Rizal and Laguna and the cities of San Pablo, Manila, Pasay, Quezon and Caloocan with due regard and adequate provisions for environmental management and control, preservation of the quality of human life and ecological systems, and the prevention of undue ecological disturbances, deterioration and pollution, the LLDA is mandated, among others, to pass upon and approve or disapprove all plans, programs, and projects proposed by local government offices/agencies within the region, public corporations, and private persons or enterprises where such plans, programs, and/or projects are related to those of the LLDA for the development of the region. 2. Does the LLDA have the power and authority to issue a Cease and Desist Order to enjoin the dumping of garbage in the Tala Estate? YES. Although the LLDA was not expressly conferred the power to issue an ex parte cease and desist order in express terms, the LLDA’s issuance of one, as a practical matter of procedure under the circumstances of the case, is a proper exercise of its power and authority under its charter and its amendatory laws. The provision which empowers the LLDA to instituted necessary legal proceedings against any person who shall commence to implement or continue implementation of any project, plan or program within the Laguna de Bay region without previous clearance from the LLDA was designed to invest the LLDA with sufficiently Stephanie Luzette M. MacapagalPage 7

HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

broad powers in the regulation of all projects initiated in the Laguna Lake region, whether by the government or the private sector, insofar as the implementation of these projects is concerned. Moreover, Section 16 of Article II of the 1987 Constitution states that: “The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.” As a constitutionally guaranteed right of every person, it carries the correlative duty of non-impairment. This is but in consonance with the declared policy of the state “to protect and promote the right to health of the people and instill health consciousness among them.” It is to be borne in mind that the Philippines is party to the Universal Declaration of Human Rights and the Alma Conference Declaration of 1978 which recognize health as a fundamental human right. The LLDA’s charter is but a response to the demands of “the necessities of protecting vital public interests” which gives vitality to the abovementioned state policies and principles.

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HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

HISTORY, THEORIES OF SOURCES AND DEVELOPMENT OF HUMAN RIGHTS History  Human rights were asserted by the citizens against tyrannical governments. They arose from the struggle of man against injustices of despotic rulers.  The struggle for the respect of human rights was originally a domestic or national issue.  The atrocities committed on masses of people during World War II have convinced international jurists that the protection of human rights should be an international concern. o

Respect for human rights mainly concerns individuals without distinction as to nationality or citizenship.

o

Violation of human rights are offenses without borders.

Theories of Sources of Rights: 1. Religious/Theological Approach o

A basis of human rights theory stemming from a law higher than the state and whose source is the Supreme Being. 

Human rights are not concessions granted by human institutions or states, or any international organization as they are God-given rights.

o

Central to the doctrines of all religions is the concept of dignity of man as a consequence of human rights.

o

The divine source gives human beings a high value of worth.

o

The belief of a universal common creation means a common humanity and consequently universal, basic and fundamental rights. And since rights come from a divine source, they are inalienable and cannot be denied by mortal beings.

o

Criticism: Some religions impose so many restrictions on individual freedom; some religions even tolerate slavery, discrimination against women, and imposition of the death penalty

2. Natural Law Theory o

Originated from the Stoics and elaborated by Greek philosophers and later by ancient Roman law jurists.

o

Perceives that the conduct of men must always conform to the law of nature.

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HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

o

Natural law embodies those elementary principles of justice which were right reason, i.e., in accordance with nature, unalterable, eternal.

o

Philosophers: 

Thomas Aquinas – considered natural law as the law of right reason in accordance with the law of God, commonly known as the scholastic natural law



Hugo Grotius – the natural characteristics of human beings are the social impulse to live peacefully and in harmony with others whatever conformed to the nature of men as natural human beings was right and just; whatever is disturbing to social harmony is wrong and unjust



John Locke – envisioned human beings in a state of nature, where they enjoyed life, liberty and property which are deemed natural rights

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Became the basis of the natural rights of man against oppressive rulers

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Nuremberg Trials – rationale for finding the Nazis guilty: the crimes committed were offenses against humanity and there is no need of a law penalizing the acts

3. Positivist Theory/Legal Positivism o

All rights and authority come from the state and what officials have promulgated.

o

The only law is what is commanded by the sovereign.

o

The source of human rights is to be found only in the enactment of a law with sanctions attached.

o

A right is enjoyed only if it is recognized and protected by legislation promulgated by the state.

4. Historical Theory o

Advocates that human rights are not deliberate creation or the effort of man but they have already existed through the common consciousness of the people of what is right and just.

o

Human rights exist through gradual, spontaneous and evolutionary process without any arbitrary will of any authority.

5. Theory of Marxism o

Emphasizes the interest of society over an individual man’s interest. Individual freedom is recognized only after the interest of society is served.

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HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

o

Concerned with economic and social rights over civil or political rights of community.

o

Referred to as “parental” with the political body providing the guidance in value choice. But the true choice is the government set by the state

6. Functional/Sociological Approach o

Human rights exist as a means of social control, to serve the social interests of society.

o

Lays emphasis of obtaining a just equilibrium of multifarious interests among prevailing moral sentiments and the social and economic conditions of the time and place.

7. Utilitarian Theory o

Seeks to define the notion of rights in terms of tendencies to promote specified ends such as common good.

o

Every human decision was motivated by some calculation of pleasure and pain. The goal is to promote the greatest happiness of the greatest number.

o

Everyone is counted equally, but not treated equally.

o

Requires the government to maximize the total net sum of citizens.

o

An individual cannot be more important than the entire group. A man cannot simply live alone in disregard of his impulse to society.

o

The composite society of which the individual is a unit has on its own wants, claims and demands. An act is good only when it takes into consideration the interests of the society and tends to augment the happiness of the entire community.

8. Theory Based on Dignity of Man/Policy Science Approach o

Human rights means sharing values of all identified policies upon which human rights depend on.

o

The most important values are respect, power, knowledge, health, and security.

o

The ultimate goal of this theory is a world community where there is democratic sharing and distribution of values.

o

All available resources are utilized to the maximum and the protection of human dignity is recognized.

9. Theories of Justice Stephanie Luzette M. MacapagalPage 11

HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

o

Each person possesses inviolability founded on justice.

o

The rights secured for justice are not subject to political bargaining or to social interests.

o

Each person has equal rights to the whole system of liberties. There is no justice in a community where there are social and economic inequalities.

o

The general conception of justice is one of fairness and those social primary goods such as opportunity, income and wealth and self-respect are to be distributed equally.

10. Theory Based on Equality and Respect of Human Dignity o

The recognition of individual rights in the enjoyment of the basic freedoms such as freedom of speech, religion, assembly, fair trial and access to courts.

o

Governments must treat all their citizens equally. For this purpose, the government must intervene in order to advance general welfare.

Origin of Human Rights in the Philippines 20 June 1899 – Malolos Constitution: contained several provisions on civil and political rights 1902 – Philippine Bill of 1902 1916 – Philippine Autonomy Act of 1916/Jones Law 1934 – Philippine Independence Act of 1934/Tydings-McDuffee Law 1935 – First Philippine Constitution: contained Bill of Rights 1973 – Second Philippine Constitution 1983 – Present Philippine Constitution  From 1942 to 1944, the Filipinos were temporarily deprived of the enjoyment of the civil and political rights during the military rule of Japan. But these were immediately restored in 1945.  The Filipinos were again subjected to violation of human rights during the authoritarian rule of President Marcos, which was terminated during the February 1986 revolution. Human Rights Instruments to which The Philippines is a Signatory: 1. International Covenant of Economic, Social and Cultural Rights (7 June 1974) 2. International Covenant on Civil and Political Rights (23 October 1986) 3. Optional Protocol International Covenant on Civil and Political Rights (22 August 1989) Stephanie Luzette M. MacapagalPage 12

HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

4. International Convention on the Elimination of All Forms of Racial Discrimination (15 September 1976) 5. International Convention on the Suppression and Punishment of the Crime of Apartheid (27 July 1987) 6. International Convention against Apartheid (27 July 1987) 7. International Convention on the Elimination of All Forms of Discrimination Against Women (5 August 1981) 8. Convention on the Political Rights of Women (12 September 1957) 9. Convention on the Rights of the Child (21 August 1990) 10. Slavery Convention of 1926 (12 July 1955) 11. Protocol Amending the Slavery Convention (17 November 1965) 12. Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices (17 November 1965) 13. Convention on the Suppression of the Trafficking of Persons and the Exploitation of Others (19 September 1952) 14. Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (18 June 1986) 15. The Convention on the Consent to Marriage, Minimum Age for Marriage and Registration of Marriage (21 January 1965) 16. International Convention on the Protection of All Migrant Workers and Members of their Families (13 November 1993) 17. Convention on the Nationality of Married Women 18. Convention on the Status of Stateless Persons (22 June 1955) 19. Convention Relating to the Status of Refugees (22 July 1981) 20. Convention on the Prevention and the Punishment of the Crime of Genocide (7 July 1950) 21. Convention on Non-applicability of Statutory Limitation on War Crimes and Crimes Against Humanity (15 May 1973) 22. Protocol Additional to the Geneva Convention of 12 August 1949, Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (11 July 1987) The Philippine Commission on Human Rights Stephanie Luzette M. MacapagalPage 13

HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

Creation: Mandated by the 1987 Constitution; formally constituted by President Aquino’s Executive Order No. 163 Composition and Qualifications: One Chairman and four Members, who must be natural-born citizens of the Philippines and a majority of whom shall be members of the Bar (Section 17, Art. XIII, 1987 Constitution) Powers and Functions: (Section 18, Art. XIII, 1987 Constitution) (1) Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights; (2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court; (3) Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the under-privileged whose human rights have been violated or need protection; (4) Exercise visitorial powers over jails, prisons, or detention facilities; (5) Establish a continuing program of research, education, and information to enhance respect for the primacy of human rights; (6) Recommend to Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights, or their families; (7) Monitor the Philippine Government’s compliance with international treaty obligations on human rights; (8) 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 in any investigation conducted by it or under its authority; (9) Request the assistance of any department, bureau, office, or agency in the performance of its functions; (10) Appoint its officers and employees in accordance with law; and (11)Perform such other duties and functions as may be provided by law. Cariño v. Commission on Human Rights, 204 SCRA 483 Facts: For joining the concerted mass actions of public teachers and for failure to heed the return-to-work order issued by DECS Secretary Cariño, eight teachers from the Ramon Magsaysay High School, namely Graciano Budoy, Julieta Babaran, Elsa Ibabao, Helen Lupo, Amparo Gonzales, Luz del Castillo, Elsa Reyes and Apolinario Esber were administratively Stephanie Luzette M. MacapagalPage 14

HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

charged, preventively suspended for 90 days, and temporarily replaced. The said eight teachers, led by their counsel, subsequently staged a walkout signifying their intent to boycott the proceedings. Thereafter, Secretary Cariño rendered a decision ordering the dismissal from service of Esber, and the 9-month suspensions of Babaran, Budoy, and del Castillo. The eight teachers then complained to the Commission on Human Rights on the ground that they were denied due process. Secretary Cariño filed a motion to dismiss with the CHR on the ground that the CHR had no jurisdiction over the case. Issue and Ruling: 1. W/N the CHR has the power under the Constitution to try and decide, or hear and determine, certain specific type of cases, like alleged human rights violations involving civil or political rights. NO. The CHR was not meant by the Constitution to be another court or quasi-judicial agency in this country. The most that may be conceded to the CHR 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. Fact finding is not adjudication, and cannot be likened to the judicial function of a court of justice, or even a quasijudicial 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 CHR 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 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 in the technical sense, these terms have well understood and quite distinct meanings. Simon v. Commission on Human Rights, 229 SCRA 7 Facts: A Demolition Notice was sent by the Office of the Quezon City Mayor to the officers and members of the North EDSA Vendors Association (NEVA), which gave the latter three days to Stephanie Luzette M. MacapagalPage 15

HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

vacate their stalls in order to give way to the “People’s Park.” The NEVA, led by the President Roque Fermo, filed a letter-complaint with the CHR, asking that a letter be addressed to then Mayor Brigido Simon, Jr. of Quezon City to stop the demolition of their stalls, sari-sari stores, and carinderia along EDSA. The CHR subsequently issued an Order directing the QC Officers to desist from demolishing the stalls and shanties at North EDSA pending resolution of the vendors’ complaint before the Commission. Notwithstanding said Order, the QC Officers carried out the demolition of the stalls, sarisari stores, and carinderia, prompting the CHR to order the disbursement of financial assistance of not more than P200,000.00 in favor of the vendors to purchase light housing materials and food under the CHR’s supervision and again directed the QC Officers to desist from further demolition, with the warning that violation of said Order would lead to a citation for contempt and arrest. The QC Officers filed a motion to dismiss, questioning the CHR’s jurisdiction. Subsequently, the CHR cited the QC Officers in contempt for carrying out further demolition on the stalls, sari-sari stores, and carinderia despite the order to desist, and imposed a fine of P500.00 on each of them. Issues and Ruling: 1. W/N the CHR has jurisdiction to investigate the violation of the rights of those vendors whose stalls were demolished by the QC Officers at the instance and authority given by N Mayor of QC. NO. The order for the demolition of the stalls, sari-sari stores and carinderia of the vendors does not fall within the compartment of “human rights violations involving civil and political rights” intended by the Constitution. 2. W/N the CHR has jurisdiction to impose a fine of P500.00 on each of the QC Officers. NO. Although the CHR is constitutionally authorized to adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court, and accordingly, the CHR acted within its authority in providing in its revised rules, its power to cite or hold any person in direct or indirect contempt, and to impose the appropriate penalties in accordance with the procedure and sanctions provided for in the Rules of Court, the power to cite in contempt should be understood to apply only to violations of its adopted operational guidelines and rules of procedure essential to carry out its investigatorial powers. The order to desist is not investigatorial in character but prescinds from an adjudicative power that it does not possess. NOTE: Human rights seems to closely identify with the universally accepted traits and attributes of an individual, along with what is generally considered to be his inherent and inalienable rights, encompassing almost all aspects of life.

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THE INTERNATIONAL BILL OF HUMAN RIGHTS Main objective of the United Nations: the recognition and respect of human rights Purpose of the UN: the promotion and encouragement of respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion The UN Charter contains at least seven articles on human rights: 1. Article 13, which directs the General Assembly the task of initiating studies and recommendations for the purpose of assisting in the realization of human rights and fundamental freedom 2. Article 55(c), which commits the UN to promote universal respect for an observance of human rights and fundamental freedoms 3. Article 56, which provides for the clear legal obligation of all members to pledge themselves and take joint and separate actions in cooperation with the UN for the advancement of the purposes set forth in Article 55(c) 4. Article 62(2), which states that the Economic and Social Council may make recommendations for the purpose of promoting respect for an observance for human rights and fundamental freedom for all 5. Article 76, which mandates the Trusteeship System to encourage respect for the human rights and for fundamental freedom for all without distinction as to race, sex, language, or religion and to encourage recognition of the interdependence of the peoples of the world 6. Article 10, which suggests to the General Assembly to discuss any matter within the scope of the Charter which may concern human rights 7. Article 69(2), which provides that the Economic and Social Council, with the approval of the General Assembly, may perform services at the request of any member state  Basis for the advisory services program on human rights such as providing experts or granting fellowships or organizing seminars NOTE: In fine, every article in the UN Charter which refers to the purposes of the UN is deemed to include the promotion of human rights. UN Commission on Human Rights  Formally established by the Economic and Social Council to assist in all matters relating in human rights  Composed of 43 members Stephanie Luzette M. MacapagalPage 17

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 Deals with all aspects of human rights issues involving the participation of all sectors of the international committee  Undertakes special tasks assigned to it by the General Council, including the investigation of all allegations of human rights violations  Coordinates activities relating to human rights through the UN System  Sub-commissions of independent experts are elected and empowered to undertake studies and to make recommendations to prevent discrimination, protect minority rights and fundamental freedoms  Special rapporteurs or working groups are appointed to deal with special topics o

Discrimination in education, religion and the administration of justice

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The adverse consequences for human rights caused by political, military, economic and other forms of assistance to colonial and racist regimes

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The rights of ethnic, religious, and linguistic minorities

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Issues related to self-determination

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The realization of economic, social and cultural rights

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The rights of indigenous populations

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The new international economic order and the promotion of human rights

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The right to adequate food as a human right

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The exploitation of child labor

The Declaration of Human Rights  A mere declaration of norms to serve as a common standard of achievement for all nations  UN did not direct its members to enforce them; no sanctions or enforcement machinery was set up  Article 55 of the UN Charter directs members to pledge themselves to the joint and separate action in cooperation with the UN to achieve universal respect for an observance of human rights and fundamental freedoms  Although it is not a legally binding document, most nations have recognized the principles of the Declaration which have gained moral weight and persuasion in the domestic offices

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HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

 Its principles have been adopted in most state constitutions 1. Freedom and Equality  First eight articles emphasize that all human beings, without distinction, are born free and equal in dignity and rights Article 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional, or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. Article 3. Everyone has the right to life, liberty, and security of person. Article 4. No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 6. Everyone has the right to recognition everywhere as a person before the law. Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. 2. Liberty, Security, and Recognition of Persons Article 4, supra. Article 5, supra. Article 6, supra. Article 7, supra. Article 9. No one shall be subjected to arbitrary arrest, detention or exile. Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

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HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

Article 11. (1) Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense. (2) No one shall be held guilty of any penal offense on account of any act or omission which did not constitute a penal offense, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offense was committed. Article 12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks. Article 14. (1) Everyone has the right to seek and enjoy in other countries asylum from persecution. (2) This right may not be invoked in the case of prosecutions genuinely arising from nonpolitical crimes or from acts contrary to the purposes and principles of the United Nations.

3. Right to Privacy Article 12, supra. Article 13. (1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his country.

4. Nationality and the Family Article 15. (1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Article 16.

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HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

5. Right to Own Property  Ownership of external goods assures a person a highly necessary sphere for the exercise of his personal and family autonomy and ought to be considered as an extension of human freedom. Article 17. (1) Everyone has the right to own property alone as well as in association with others (2) No one shall be arbitrarily deprived of his property.

6. Freedom of Thought, Conscience, and Religion Article 18. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. 7. Economic, Social, and Cultural Rights Article 22. Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. Article 23. (1) Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment. (2) Everyone, without any discrimination, has the right to equal pay for equal work. Stephanie Luzette M. MacapagalPage 21

HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

(3) Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. (4) Everyone has the right to form and join trade unions for the protection of his interests. Article 24. Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. Article 25. (1) Everyone has a right to a standard of living himself and of his family, including food, necessary social services, and the right to sickness, disability, widowhood, old age or beyond his control.

adequate for the health and well-being of clothing, housing and medical care and security in the event of unemployment, other lack of livelihood in circumstances

(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

8. Rights to Education and Cultural Development Article 26. (1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance, and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. (3) Parents have a prior right to choose the kind of education that shall be given to their children. Article 27. (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary, or artistic production of which he is the author.

9. Development of Personality Stephanie Luzette M. MacapagalPage 22

HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

Article 28. Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized. Article 29. (1) Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations. Article 30. Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein. 10. Other Rights Article 20. (1) Everyone has the right to freedom of peaceful assembly and association. (2) No one may be compelled to belong to an association. Article 21. (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. (2) Everyone has the right of equal access to public service in his country. (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. The International Bill of Human Rights  Composed of 1. The International Covenant on Economic, Social and Cultural Rights (ICESCR) 2. The International Covenant on Civil and Political Rights (ICCPR) 3. The Universal Declaration of Human Rights

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HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

 The ICESCR and the ICCPR are legally binding on the States that ratify them.  Mechanisms through which the ICESCR and the ICCPR are enforced: o

ICESCR – Committee on Economic, Social, and Cultural Rights reviews the States Parties programs

o

ICCPR – Human Rights Committee, an independent body of experts

Hindrances in the Implementation of Human Rights Instruments 1. Authoritarian regimes headed by dictators and ruthless leaders 2. Article 2, par. 7 of the UN Charter, which states that: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.” 3. Provisions in international treaties that are not self-executing  They cannot be applied unless implementing local legislations are enacted 4. Economic, social and cultural rights have no fixed and well-defined forum to redress violations 5. Human rights violations are rarely reported

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REPUBLIC ACT NO. 9851 AN ACT DEFINING AND PENALIZING CRIMES AGAINST INTERNATIONAL HUMANITARIAN LAW, GENOCIDE AND OTHER CRIMES AGAINST HUMANITY, ORGANIZING JURISDICTION, DESIGNATING SPECIAL COURTS, AND FOR RELATED PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: CHAPTER I INTRODUCTORY PROVISIONS Section 1. Short Title. - This Act shall be known as the "Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity". Section 2. Declaration of Principles and State Policies. (a) The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to a policy of peace, equality, justice, freedom, cooperation and amity with all nations. (b) The state values the dignity of every human person and guarantees full respect for human rights, including the rights of indigenous cultural communities and other vulnerable groups, such as women and children; (c) It shall be the responsibility of the State and all other sectors concerned to resolved armed conflict in order to promote the goal of "Children as Zones of Peace"; (d) The state adopts the generally accepted principles of international law, including the Hague Conventions of 1907, the Geneva Conventions on the protection of victims of war and international humanitarian law, as part of the law our nation; (e) The most serious crimes of concern to the international community as a whole must not go unpunished and their effective prosecution must be ensured by taking measures at the national level, in order to put an end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes, it being the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes; (f) The State shall guarantee persons suspected or accused of having committed grave crimes under international law all rights necessary to ensure that their trial will be fair and prompt in strict accordance with national and international law and standards for fair trial, It shall also protect victims, witnesses and their families, and provide appropriate redress to victims and their families, It shall ensure that the legal systems in place provide accessible and gender-sensitive avenues of redress for victims of armed conflict, and Stephanie Luzette M. MacapagalPage 25

HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

(g)The State recognizes that the application of the provisions of this Act shall not affect the legal status of the parties to a conflict, nor give an implied recognition of the status of belligerency CHAPTER II DEFINITION OF TERMS Section 3. For purposes of this Act, the term: (a) "Apartheid' means inhumane acts committed in the context of an institutionalized regime of systematic oppression and domination by one racial group or groups and committed with the intention of maintaining that regime (b) "Arbitrary deportation or forcible transfer of population" means forced displacement of the persons concerned by expultion by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under domestic or international law. (c) "Armed conflict" means any use of force or armed violence between States or a protracted armed violence between governmental authorities and organized armed groups or between such groups within that State: Provided, That such force or armed violence gives rise, or may give rise, to a situation to which the Geneva Conventions of 12 August 1949, including their common Article 3, apply. Armed conflict may be international, that is, between two (2) or more States, including belligerent occupation; or non-international, that is, between governmental authorities and organized armed groups or between such groups within a state. It does not cover internal disturbances or tensions such as riots, isolated and sporadic acts of violence or other acts of a similar nature. (d) "Armed forces" means all organized armed forces, groups and units that belong to a party to an armed conflict which are under a command responsible to that party for the conduct of its subordinates. Such armed forces shall be subject to an internal disciplinary system which enforces compliance with International Humanitarian Law (e) "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in Section 6 of this Act against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack. (f) "Effective command and control" or " effective authority and control" means having the material ability to prevent and punish the commission of offenses by subordinates. (g) "Enforced or involuntary disappearance of persons" means the arrest, detention, or abduction of persons by, or with the authorization support or acquiescence of, a State or a political organization followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing from the protection of the law for a prolonged period of time

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(h) "Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children. (i) "Extermination" means the international infliction of conditions of life, inter alia, the deprivation of access to food and medicine, calculated to bring about the destruction of a part of a population. (j) " Forced pregnancy" means the unlawful confinement of a women to be forcibly made pregnant, with the intent of affecting the ethnic composition of any population carrying out other grave violations of international law. (k) "Hors de Combat" means a person who: (1) is in the power of an adverse party; (2) has clearly expressed an intention to surrender; or (3) has been rendered unconscious or otherwise incapacitated by wounds or sickness and therefore is incapable of defending himself: Provided, that in any of these cases, the person form any hostile act and does not attempt to escape. (l) "Military necessity" means the necessity of employing measures which are indispensable to achieve a legitimate aim of the conflict and are not otherwise prohibited by International Humanitarian Law (m) "Non-defended locality" means a locality that fulfills the following conditions: (1) all combatants, as well as mobile weapons and mobile military equipment, must have been evacuated; (2) no hostile use of fixed military installations or establishments must have been made; (3) no acts of hostility must have been committed by the authorities or by the population; and (4) no activities in support of military operations, must have been undertaken. (n) "No quarter will be given' means refusing to spare the life of anybody, even of persons manifestly unable to defend themselves or who clearly express their intention to surrender. (o) "Perfidy" means acts which invite the confidence of an adversary to lead him/her to believe he/she is entitled to, or is obliged to accord, protection under the rules of International Humanitarian Law, with the intent to betray that confidence, including but not limited to: (1) feigning an intent to negotiate under a flag of truce; Stephanie Luzette M. MacapagalPage 27

HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

(2) feigning surrender; (3) feigning incapacitation by wounds or sickness; (4) feigning civilian or noncombatant status; and (5) feigning protective status by use of signs, emblems or uniforms of the United Nations or of a neutral or other State not party to the conflict. (p) "Persecution" means the international and severe deprivation of fundamental rights contrary to international law by reason of identity of the group or collectivity. (q) "Protect person" in an armed conflict means: (1) a person wounded, sick or shipwrecked, whether civilian or military; (2) a prisoner of war or any person deprived of liberty for reasons related to an armed conflict; (3) a civilian or any person not taking a direct part or having ceased to take part in the hostilities in the power of the adverse party; (4) a person who, before the beginning of hostilities, was considered a stateless person or refugee under the relevant international instruments accepted by the parties to the conflict concerned or under the national legislation of the state of refuge or state of residence; (5) a member of the medical personnel assigned exclusively to medical purposes or to the administration of medical units or to the operation of or administration of medical transports; or (6) a member of the religious personnel who is exclusively engaged in the work of their ministry and attached to the armed forces of a party to the conflict, its medical units or medical transports, or non-denominational, noncombatant military personnel carrying out functions similar to religious personnel. (r) " Superior" means: (1) a military commander or a person effectively acting as a military commander; or (2) any other superior, in as much as the crimes arose from activities within the effective authority and control of that superior. (s) "Torture" means the intentional infliction of severe pain or suffering, whether physical, mental, or psychological, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.

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(t) "Works and installations containing dangerous forces" means works and installations the attack of which may cause the release of dangerous forces and consequent severe losses among the civilian population, namely: dams, dikes, and nuclear, electrical generation stations. CHAPTER III CRIMES AGAINST INTERNATIONAL HUMANITARIAN LAW, GENOCIDE AND OTHER CRIMES AGAINST HUMANITY Section 4. War Crimes. - For the purpose of this Act, "war crimes" or "crimes against Interntional Human Humanitarian Law" means: (a) In case of an international armed conflict , grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under provisions of the relevant Geneva Convention: (1) Willful killing; (2) Torture or inhuman treatment, including biological experiments; (3) Willfully causing great suffering, or serious injury to body or health; (4) Extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly; (5) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (6) Arbitrary deportation or forcible transfer of population or unlawful confinement; (7) Taking of hostages; (8) Compelling a prisoner a prisoner of war or other protected person to serve in the forces of a hostile power; and (9) Unjustifiable delay in the repatriation of prisoners of war or other protected persons. (b) In case of a non-international armed conflict, serious violations of common Article 3 to the four (4) Geneva Conventions of 12 August 1949, namely , any of the following acts committed against persons taking no active part in the hostilities, including member of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause; (1) Violence to life and person, in particular, willful killings, mutilation, cruel treatment and torture; (2) Committing outrages upon personal dignity, in particular, humiliating and degrading treatment; Stephanie Luzette M. MacapagalPage 29

HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

(3) Taking of hostages; and (4) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. (c) Other serious violations of the laws and customs applicable in armed conflict, within the established framework of international law, namely: (1) Internationally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (2) Intentionally directing attacks against civilian objects, that is, object which are not military objectives; (3) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions or Additional Protocol III in conformity with intentional law; (4) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as ling as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (5) Launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, longterm and severe damage to the natural environment which would be excessive in relation to the concrete and direct military advantage anticipated; (6) Launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, and causing death or serious injury to body or health . (7) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives, or making non-defended localities or demilitarized zones the object of attack; (8) Killing or wounding a person in the knowledge that he/she is hors de combat, including a combatant who, having laid down his/her arms or no longer having means of defense, has surrendered at discretion; (9) Making improper use of a flag of truce, of the flag or the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions or other protective signs under International Humanitarian Law, resulting in death, serious personal injury or capture;

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(10) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives. In case of doubt whether such building or place has been used to make an effective contribution to military action, it shall be presumed not to be so used; (11) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind, or to removal of tissue or organs for transplantation, which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his/her interest, and which cause death to or seriously endanger the health of such person or persons; (12) Killing, wounding or capturing an adversary by resort to perfidy; (13) Declaring that no quarter will be given; (14) Destroying or seizing the enemy's property unless such destruction or seizure is imperatively demanded by the necessities of war; (15) Pillaging a town or place, even when taken by assault; (16) Ordering the displacements of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; (17) Transferring, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; (18) Commiting outrages upon personal dignity, in particular, humiliating and degrading treatments; (19) Commiting rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions or a serious violation of common Article 3 to the Geneva Convensions; (20) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; (21) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indespensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions and their Additional Protocols; (22) In an international armed conflict, compelling the nationals of the hostile party to take part in the operations of war directed against their own country, Stephanie Luzette M. MacapagalPage 31

HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

even if they were in the belligerent's service before the commencement of the war; (23) In an international armed conflict, declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; (24) Commiting any of the following acts: (i) Conscripting, enlisting or recruiting children under the age of fifteen (15) years into the national armed forces; (ii) Conscripting, enlisting or recruiting children under the age of eighteen (18) years into an armed force or group other than the national armed forces; and (iii) Using children under the age of eighteen (18) years to participate actively in hostilities; and (25) Employing means of warfare which are prohibited under international law, such as: (i) Poison or poisoned weapons; (ii) Asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; (iii) Bullets which expand or flatten easily in the human body, such as bullets with hard envelopes which do not entirely cover the core or are pierced with incisions; and (iv) Weapons, projectiles and material and methods of warfare which are of the nature to cause superfluous injury or unecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict. Any person found guilty of commiting any of the acts specified herein shall suffer the penalty provided under Section 7 of this Act. Section 5. Genocide - (a) For the purpose of this Act, "genocide" means any of the following acts with intent to destroy, in whole or in part, a national, ethnic, racial, religious, social or any other similar stable and permanent group as such: (1) Killing members of the group; (2) Causing serious bodily or mental harm to members of the group; (3) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Stephanie Luzette M. MacapagalPage 32

HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

(4) Imposing measures intended to prevent births within the group; and (5) Forcibly transferring children of the group to another group. (b) It shall be unlawful for any person to directly and publicly incite others to commit genocide. Any person found guilty of committing any of the acts specified in paragraphs (a) and (b) of this section shall suffer the penalty provided under Section 7 of this Act. Section 6. Other Crimes Against Humanity. - For the purpose of this act, "other crimes against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Willful killing; (b) Extermination; (c) Enslavement; (d) Arbitrary deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, sexual orientation or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime defined in this Act; (i) Enforced or involuntary disappearance of persons; (j) Apartheid; and (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. Any person found guilty of committing any of the acts specified herein shall suffer the penalty provided under Section 7 of this Act. CHAPTER IV PENAL PROVISIONS

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Section 7. Penalties. - Any person found guilty of committing any of the acts provided under Sections 4, 5 and 6 of this Act shall suffer the penalty of reclusion temporal in its medium to maximum period and a fine ranging from One hundred thousand pesos (Php 100,000.00) to Five hundred thousand pesos (Php 500,000.00). When justified by the extreme gravity of the crime, especially where the commision of any of the crimes specified herein results in death or serious physical injury, or constitutes rape, and considering the individual circumstances of the accused, the penalty of reclusion perpetua and a fine ranging from Five hundred thousand pesos (Php 500,000.00) to One million pesos (Php 1,000,000.00) shall be imposed. Any person found guilty of inciting others to commit genocide referred to in Section 5(b) of this Act shall suffer the penalty of prision mayor in its minimum period and a fine ranging from Ten thousand pesos (Php 10,000.00) to Twenty thousand pesos (Php 20,000.00). In addition, the court shall order the forfeiture of proceeds, property and assets derived, directly or indirectly, from that crime, without prejudice to the rights of bona fide third (3rd) parties. The court shall also impose the corresponding accessory penalties under the Revised Penal Code, especially where the offender is a public officer. CHAPTER V SOME PRINCIPLES OF CRIMINAL LIABILITY Section 8. Individual Criminal Responsibilities. - (a) In addition to existing provisions in Philippine law on principles of criminal responsibility, a person shall be criminally liable as principal for a crime defined and penalized in this Act if he/she: (1) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (2) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (3) In any other way contributes to the commission or attempted commission of such a crime by a group of person acting with a common purpose. Such contribution shall be intentional and shall either: (i) be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime defined in this Act; or (ii) be made in the knowledge of the intention of the group to commit the crime. (b) A person shall be criminally liable as accomplice for facilitating the commission of a crime defined and penalized in this Act if he/she aids, abets or otherwise assists in its commission or attempted commission, including providing the means for its commission.

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(c) A person shall be criminally liable for a crime defined and penalized in this Act if he/she attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intention. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Act for the attempt to commit the same if he/she completely and voluntarily gave up the criminal purpose. Section 9. Irrelevance of Official Capacity. - This Act shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a head of state or government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Act, nor shall it, in and of itself, constitute a ground for reduction of sentence. However: (a) Immunities or special procedural rules that may be attached to the official capacity of a person under Philippine law other than the established constitutional immunity from suit of the Philippine President during his/her tenure, shall not bar the court from exercising jurisdiction over such a person; and (b) Immunities that may be attached to the official capacity of a person under international law may limit the application of this Act, nut only within the bounds established under international law. Section 10. Responsibility of Superiors. - In addition to other grounds of criminal responsibility for crimes defined and penalized under this Act, a superior shall be criminally responsible as a principal for such crimes committed by subordinates under his/her effective command and control, or effective authority and control as the case may be, as a result of his/her failure to properly exercise control over such subordinates, where: (a) That superior either knew or, owing to the circumstances at the time, should have known that the subordinates were committing or about to commit such crimes; (b) That superior failed to take all necessary and reasonable measures within his/her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. Section 11. Non-prescription. - The crimes defined and penalized under this Act, their prosecution, and the execution of sentences imposed on their account, shall not be subject to any prescription. Section 12. Orders from a Superior. - The fact that a crime defined and penalized under this Act has been committed by a person pursuant to an order of a government or a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless all of the following elements occur: (a) The person was under a legal obligation to obey orders of the government or the superior in question; (b) The person did not know that the order was unlawful; and

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HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

(c) The order was not manifestly unlawful. For the purposes of this section, orders to commit genocide or other crimes against humanity are manifestly unlawful. CHAPTER VI Protection of Victims and Witnesses Section 13. Protection of Victims and Witnesses. - In addition to existing provisions in Philippine law for the protection of victims and witnesses, the following measures shall be undertaken: (a) The Philippine court shall take appropriate measures to protect the safety, physical and physiological well-being, dignity and privacy of victims and witnesses. In so doing, the court shall have regard of all relevant factors, including age, gender and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and to a fair and impartial trial; (b) As an exception to the general principle of public hearings, the court may, to protect the victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of the victim of sexual violence or a child who is a victim or is a witness, unless otherwise ordered by the court, having regard to all the circumstances, particularly the views of the victim or witness; (c) Where the personal interests of the victims are affected, the court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the court in manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the court considers it appropriate in accordance with the established rules of procedure and evidence; and (d) Where the disclosure of evidence or information pursuant to this Act may lead to the grave endangerment of the security of a witness for his/her family, the prosecution may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and to a fair and impartial trial. Section 14. Reparations to Victims. - In addition to existing provisions in Philippine law and procedural rules for reparations to victims, the following measures shall be undertaken: (a) The court shall follow the principles relating to the reparations to, or in respect of, victims,including restitution, compensation and rehabilitation. On this basis, in its decision, the court may, wither upon request or on its own motion in exceptional

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HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and state the principles on which it is acting;1avvphi1 (b) The court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation; and (c) Before making an order under this section, the court may invite and shall take account of representations from or on behalf of the convicted person, victims or other interested persons. Nothing in this section shall be interpreted as prejudicing the rights of victims under national or international law. CHAPTER VII Applicability of International Law and Other Laws Section 15. Applicability of International Law.- In the application and interpretation of this Act, Philippine courts shall be guided by the following sources: (a) The 1948 Genocide Convention; (b) The 1949 Genava Conventions I-IV, their 1977 Additional Protocols I and II and their 2005 Additional Protocol III; (c) The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, its First Protocol and its 1999 Second Protocol; (d) The 1989 Convention on the Rights of the Child and its 2000 Optional Protocol on the Involvement of Children in Armed Conflict; (e) The rules and principles of customary international law; (f) The judicial decisions of international courts and tribunals; (g) Relevant and applicable international human rights instruments; (h) Other relevant international treaties and conventions ratified or acceded to by the Republic of the Philippines; and (i) Teachings of the most highly qualified publicists and authoritative commentaries on the foregoing sources as subsidiary means for the determination of rules of international law. Section 16. Suppletory Application of the Revised Penal Code and Other General or Special Laws. - The provisions of the Revised Penal Code and other general or special laws shall have a suppletory application to the provisions of this Act.

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HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

CHAPTER VII JURISDICTION Section 17. Jurisdiction.- The State shall exercise jurisdiction over persons, whether military or civilian, suspected or accused of a crime defined and penalized in this Act, regardless of where the crime is committed, provided, any one of the following conditions is met: (a) The accused is a Filipino citizen; (b) The accused, regardless of citizenship or residence, is present in the Philippines; or (c) The accused has committed the said crime against a Filipino citizen. In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties. No criminal proceedings shall be initiated against foreign nationals suspected or accused of having committed the crimes defined and penalized in this Act if they have been tried by a competent court outside the Philippines in respect of the same offense and acquitted, or having been convicted, already served their sentence. Section 18. Philippine Court, Prosecutors and Investigators. - The Regional Trial Court of the Philippines shall have original and exclusive jurisdiction over the crimes punishable under this Act. Their judgments may be appealed or elevated to the Court of Appeals and to the Supreme Court as provided by law. The Supreme Court shall designate special courts to try cases involving crimes punishable under this Act. For these cases, the Commission on Human Rights, the Department of Justice, the Philippine National Police or other concerned law enforcement agencies shall designate prosecutors or investigators as the case may be. The State shall ensure that judges, prosecutors and investigators, especially those designated for purposes of this Act, receive effective training in human rights, International Humanitarian Law and International Criminal Law. CHAPTER IX FINAL PROVISIONS Section 19. Separability Clause. - If, for any reason or reasons, any part or provision of this Statute shall be held to be unconstitutional or invalid, other parts or provisions hereof which are not affected thereby shall continue to be in full force and effect. Section 20. Repealing Clause. - All laws, presidential decrees and issuances, executive orders, rules and regulations or parts thereof inconsistent with the provisions of this Statute are hereby repealed or modified accordingly.

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HUMAN RIGHTS under Atty. Principe, Midterms Reviewer

Section 21. Effectivity. - This Act shall take effect fifteen (15) days after its complete publication in the Official Gazette or in two (2) newspapers general circulation.

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