Concepts of human rights

Chapter 8

                                  Concepts of human rights

The Philippines observes National Human Rights week every December 3-10 in accordance with proclamation No.177 promulgated by President Aquino in 1987. There are three important documents that the Philippines recognize in upholding the human rights of individuals. These are:

·         INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

·         UNIVERSAL DECLARATION OF HUMAN RIGHTS

·         1987 CONSTITUTION

What is Human Rights?

§  Human Rights are generally defined as those rights, which are inherent in our nature, and without which we cannot live as human beings.

-Phil.Commission on Human Rights

§  International norms that help to protect all people everywhere form serve political, legal, and social abuses.

THREE GREAT POWERS OF GOVERNMENT

1.      POLICE POWER

v  PUBLIC HEALTH

v  PUBLIC SAFETY

v  PUBLIC WELFARE

v  PUBLIC MORALS

2.      POWER OF EMINENT DOMAIN

3.      POWER OF TAXATION

CLASSES OF RIGHTSOF CITIZENS

1.      NATURAL RIGHTS

2.      CONSTITUTIONAL RIGHTS

v  POLITICAL RIGHTS

v  CIVIL RIGHTS

3.      STATUTORY RIGHTS

INDIVIDUAL RIGHTS IN RELATION TO SOCIETY AND STATE AUTHORITY

Rights refer to one’s privileges to claim and do what he is justly entitled to.

Freedom means to be free to do anything at will without prior restraint.

There are five human rights enumerated in this section. These are:

1.      Right to Life

2.      Right to Liberty

3.      Right to Property

4.      Right to Due Process of Law

5.      Right to Equal Protection of the Laws

Due process of law

It is also a right enshrined in the constitution. It has two aspects-procedural due process and substantive due process.

  Procedural due process

v  This refers to the manner or procedure which must be followed in the enforcement or application of law.

Substantive due process

v  This means that the law to be apply should be valid just and not arbitrary

v  When a warrantless arrest is considered lawful

v  A peace officer can arrest a person only if there is a valid warrant but Sec. 5 of Rules of Court; provides exceptions.

The bid for a warrantless arrest

On July 9;1990 the supreme court handed down a very controversial decision; which caused militant groups and advocates of human rights to take to the streets in vigorous protests.

RIGHT TO PRIVACY
- Every person has the right to keep his communication or correspondence a secret. His communication with others by phone or by letters is a personal and private matter that nobody should intrude upon.
THE PRIVACY OF COMMUNICATION IS PROTECTED BY SECTION 3:
1. the privacy of communication and correspondence shall be inviolable  except upon lawful 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.

FREEDOM OF EXPRESSION

Section 4 provides that. “No law shall be passed abridging the freedom of speech’ of expression of the press or the right of the people peaceably to assemble and petition the government for redress of grievances.”

FREEDOM OF SPEECH means an individual is free to speak whatever he wants without prior restraint.

FREEDOM OF THE PRESS means an individual is free to write, publish, and circulate whatever he pleases without restraint.

IMPORTANCE OF THE FREEDOM OF SPEECH

1.It encourages exploration of ideas and dissemination of knowledge, which are of public benefit and interest.

2. It enables the citizens to be informed of government acts and policies.

3. It brings government officials to the bar of public opinion and criticism in the exercise of their duties.

4. It helps prevent irregularities in any department of the government.

RELATIONSHIP OF THE FREEDOM OF EXPRESSION TO THE RIGHT TO ASSEMBLY RIGHT TO PETITION AND FREEDOM OF RELIGION

-The assembly of people requires dissemination of information publication of announcement and the exercise of free speech and of the press

THE PROHIBITATION ON PRIOR RESTRAIN

     PRIOR RESTRAIN means that restriction on the press and other forms of expression are imposed by the government in advance before the actual publication and circulation.

   EXAMPLE: are those that require license and permits to publish.

THERE ARE THREE STANDARDS IN REGULATING FREEDOM OF EXPRESSION (Bernas. S.J. 1997).

1. THE DANGEROUS TENDENCY RULE
2. THE CLEAR AND PRESENT DANGER RULE
3. THE BALANCING OF INTERESTS RULE

Rights to form Associations

•      section 8 provides that “the right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.”

Right to Own and Dispose Property

The following are the conditions for or limitations upon the exercise of the right to own and dispose property:

1. Existence of public use – it refers to the broad concept that covers anything that may be beneficial to the community.
2. Payment of just compensation – the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking.
3. Observance of due process of law in the taking – the owner shall have due notice and hearing in the expropriation proceedings especially if the owner of the private property is against selling it to the government.

Rights of the Accused

Specifically, these rights underlie the following:

1. A criminal case is an unequal contest between the accused and the government since all criminal offences are public crimes that the government must prevent.
2. A criminal accusation is a very serious matter. Whether you are guilty or not, you and your family will suffer immeasurably if you are accused of a criminal offence.
3. The protection of the innocent must be ensured.

4. the rights against being held secret incommunicado or similar forms solitary detention

       5)  The right to bail and against excessive bail.

6)      The right to due process of law

7)      The right to presumption of innocence.

8)      The right to be heard by himself.

9)      The right to be informed of the nature and cause of accusation against him.

10)  The right to have a speedy, impartial, and public trial.

11)  The right to meet the witnesses face to face.

12)  The right to have compulsory process to secure the attendance of the witnesses and the production of evidence in his behalf.

13)  The right against self-incrimination.

14)  The rights against detention by reason of political beliefs and aspirations.

15)   the right against excessive fines.

16)  the rights against cruel, degrading, in human punishment.

17)    the right against infliction of the death penalty except for heinous      crimes.

18)   the rights against double jeopardy.

Requisites for the existence of double Jeopardy (Ibid., 1997)

There is double Jeopardy if the following conditions are present:

1. The accused has been previously brought to trial.
2. In a court of competent jurisdiction.
3. Under a valid complaint or information which is sufficient in form and substance to sustain a conviction.
4. He has been arraigned and pleaded either guilty or not guilty to the charge.
5. He has been convicted or acquitted or the case against him has been dismissed or otherwise terminated without his expressed consent.
6. He has been charge again for the same offense.

Privilege of a Writ of Habeas Corpus

•      Section 15 states, “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.

Ø  Suspension of the privilege of the Writ of Habeas Corpus

The president can suspend the privilege of the writ of habeas corpus but only in the following cases:

1. Invasion or rebellion
2. When public safety requires it

 reflection: concept of human right is the right of a person to have a fair justice and how to defend his/her self. Everyone has the right to fight for themselves being a human. Thats why we should know this so that no one can abuse others.

STATE PRINCIPLES AND POLICIES

CHAPTER 7:

                

                       STATE PRINCIPLES AND POLICIES

THE PREAMBLE- which is preambulare in Latin means “to walk before”.

-      It is not an essentialpart of a constitution.

“We the sovereign Filipino people imploring the aid of almighty God in order to build a just and humane society and establish a government that shall embody our ideals and aspirations promote the common good and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and regime of truth justice freedom love equality and peace do ordain and promulgate this constitution.

SALIENT PROVISIONS ON STATE PRINCIPLES AND POLICIES

 Republicanism

Section 1 Article II defines the meaning of rebublican state as one where “sovereignty resides in the people and all government authority emanates from them”.

Supremacy of Civilian Authority                     

      Section 3 upholds the supremacy of civilian authority over military in time of peace and war. From this section there are 3 major functions of the Armed Forces of the Philippines:

a)   To secure the people;

b)   To secure the sovereign of the state; and

c)   To preserve the integrity of the nation territory.

Defense of the State

Section 4 emphasized the present constitution is that the government prime duty is not to defense of the state but to serve and protect the people.

Separation of Church and State

    Both the 1973 and the 1987 constitutions express the separation of church and state. They also declare its inviolability. Articl III Section 5 of the 1987 constitution reiterates the separation of church and state which prohibits any law to made respecting the establishment of religion and curtailing its free exercise.

Independent Foreign Policy

     Foreign policy is defined as set of goals and objectives that a country pursues in relation with other countries with international communities or with regional organization to promote or protect its interest.

Freedom from nuclear weapons

   The policy freedom from nuclear weapons covers the following:

a)   The state adheres to the establishment of a nuclear free zone in the Asian region.

b)   The satate prohibits the possession

reflection: the preamble states that the people should have the right to speak and to have a good government that face the people in fairness and equality. to promote love, peace, freedom and justice for the prosperity of the nation.

National territory

Chapter 6                                       

                                            National territory

Article I

“The national territory comprises the Philippine archipelago with the island and waters embraced therein and all other territories which the Philippine has sovereignty or jurisdiction consisting of its terrestrial fluvial and areal domains including its territorial sea the seabed the subsoil the insular shelves and other submarine areas. The waters around between connecting the islands of archipelago regardless of their breadth and dimensions form part of the internal waters of the Philippines.”

Three constitutions

·        1935

·        1973

·        1987

Two kinds of law:

Ø Municipal law –over all laws pertaining to the relationship of the states of the relationship of the states and its citizens.

Ø International law which govern the relationship of states of one another.

Battle of Bud Bagsak in 1913 the Muslims became attracted to the pacification policy of the Americans and began to like the American rule through the department of Mindanao and sulu which created to take care of the affair of the Muslims.

Territory defined:

A.  The Philippine Archipelago with all the Islands and Waters Embraced therein

The term archipelago is derived from the greek word pelagos which means sea.

Archipelago is that part of the sea studded with islands. The sea and the islands are considered as a single geographical unit.

B.  All Other Territories Over th Philippines has Sovereignty or Jurisdiction

This refer to territories already acquired or will be acquired on the future according to international law.

C.  The Terrestrial Fluvial and Aerial Domains

The fluvial domains aside from its external waters are:

1.   The territorial sea which extend 12 nautical miles (19 km) from the shore. It is also called “marginal sea” or “marine belt”. It is the belt of waters which are adjacent or parallel to the coastline of the state outside the internal waters.

2.   The seabed or the seafloor. It is the land holding the sea extending from the shore. It is simply the bottom of the territorial sea.

3.   The subsoil which is the soil layer beneath the surface soil of the territorial sea or the seabed.

4.   The insular shelves or the continental shelves. It is that submerged portion of the continent or offshore extending to a point of steep descent to the ocean floor.

5.   Other submarine areas which refer to those areas under the territorial sea commonly called as reefs basin shoal and the like.

D.  The Inland Water

There are three kinds of waters of the seas.

1.   Internal or inland water (referred to as national water)

2.   Territorial seas: and

3.   High seas

The internal or inland waters are the waters around between and connecting the islands of the archipelago.

The Archipelago Doctrine

Archipelagic Principle or Archipelago Doctrine which posited the unity of the land water and people into a single entity (Tolentino 1990). This was reiterated by the Philippines in the United Nations convention on the law of the sea (UNCLOS) in the 1960 and 1973 sessions.

The Philippine claim on the spratlys

    The Spratlys is the chain of more than 100 islands cays reefs and shoals in South China Sea. There are five countries aside from the Philippines who are actively contesting sovereignty and ownership of these islands. These are China Vietnam Brunei and Malaysia. The Philippines claim only a group of 50 to60 islands islet shoals cays and reefs on the western section of the spratlys which which it calls the Kalayaan Group of Islands (KGI).

The Philippine Claim on Sabah

    The Philippine claim on Sabah has a long historical basis compared to its claim on the spratlys.

    In 1704 North Borneo which is now called Sabah was given as a gift to the Sultan of Sulu by the Sultan of Brunei when the former was able to help the latter on quelling a 

    The government moved to recover Sabah through house resolution No. 42 adopted on April 28 1950 stating that Sabah belongs to the heir of Sultan of Sulu and authorizing the Philippines to conduct negotiations for the restoration of ownership and sovereignty the territory (Ibid. 1989)

reflection: the national territory holds the rights of the nation to its properties and land and waters around the philippines. the philippine are rich and the largest archipelago in the world because of its islands.

Changing the constitution

Chapter 5                                     

                                Changing the constitution

 AMENDMENTS FROM REVISION

Amendments

-only a part or parts of the constitution is/are change.

-its intention is to improve or add a new provision or delete an existing one.

Revision

-changing or rewriting the entire constitution.

-its intention is a reexamination of the entire document or places a structural change.

STEPS IN CHANGING THE CONSTITUTION

Congress- is basically a legislative body not a constituent body. It needs to pass a resolution to itself into a constituent assembly.

Constitutional convention- members of a constitutional convention are elected by qualified votes. The delegates or members are the direct representatives of the people in framing the fundamental law.

Electorate- this refers to the qualified voters through popular initiative.

Two steps for amendments or revision

1.   There must be a proposal of amendments or revision.

2.   Ratification or approval of the people.

Pros and cons on constitutional change

1.   It is excessively lengthy and verbose (cruz 1991). The US constitution has seven article only. The Philippines has eighteen.

2.   It was hastily written by the appointed members of the constitutional commission and incautiously ratified by the people to normalize the transition from dictatorial to democratic law.

3.   It is no longer responsive to the many changes that happens in the country and to the global community.

4.   It is a transitional constitution aiming for the return to democracy from marcos’ authoritarian rule like the like the 1935 constitution that brought the Philippines from a commonwealth government into a republic.

Accordingly some of the amendments needed are:

1.   Changing of the form of government from the presidential to parliamentary

2.   Election of senators by regions to correct the unbalanced representation in the senate

3.   Returning of police control of the local government

4.   The return of a two-party system. The multi-party system has caused confusion in the electoral system and is likely to elect a minority president.

5.   Reversion to the safer provision that the government has the prime duty to protect people and the state.

6.   To allow foreign investor to own land and operate public utilities such as transportation electricity and telecommunications.

reflection:  this means that the government should change the constitution for the better outcomes of the constitution and revise some policies and rules that will make more effective to the people. 

Meaning of constitution

Chapter 4

Meaning of constitution

CONSTITUTION- set of rules principles and costumes that establishes the limits and distributes the fundamental powers of government and defines its relations with the citizens (bernas 1997).

          THE ROLES OF THE CONSTITUTION

·        An expression of natural ideals and unity

·        A symbol of Government’s Legitimacy

·        An outline of government structure

·        An instrument of political Stability

NATURE OF CONSTITUTION

1.   Binding on all citizens and all agencies or organs of the government. Everybody is expected to follow the spirit and letter of the constitution and uphold it all the time.

2.   The law which all other laws must conform to. Being the supreme law of the land all laws passed by congress and the decisions handed by the courts must be in accordance with the constitution.

3.   The test of legality of all government action. Any decisions or action of the government agencies or the people behind them including the president of the Philippines and the laws passed by congress must conform with the constitution so that those may become valid and legal.

KINDS OF CONSTITUTION

There are different kinds of constitution depending on how they are categorized.

1.   According to Form

Written- it is contained or codified in a single document.

Unwritten- it is a product of political evolutions customs and traditions that evolved from the passage of time.

2.   As to the origin

     Conventional or enacted- it is enacted formally and deliberately by a constituent assembly like the constitutional convention.

     Cumulative or evolved- it is a product of growth over a long period of time based on customs and tradition or judicial decisions rather than enacted formally by a constituent assembly.

As to manner of Amending

     Rigid or inelastic- the constitution cannot be amended or revised easily without passing through a process.

     Flexible or elastic- the constitution can be amended or revised just like ordinary laws by the same body that makes ordinary laws.

Advantages of a Written Constitution

1.   It is clear and definite because its provisions are deliberately written in a detail.

2.   It is stable because the provisions are known to the people.

3.   It should be able to provide security in protecting the rights and liberty of the people because it is reduced in writing.

Disadvantages of a Written Constitution

1.   It is conservative which tends to direct people and government action according to written rules.

2.   It is rigid and difficult to amend. It cannot readily adapt to needed changes.

3.   It is subject to varying interpretations from lawyers and the court.

Advantages of an Unwritten Constitution

1.   It is adaptable since it is not tied to written form and therefore can be made to respond according to given situation

2.   It is dynamic and geared towards a continuous state of change according to popular will.

3.   It is resilient because it can recover from unexpected political circumstances and changes.

Disadvantages of an Unwritten Constitution

1.   It is veered towards instability because its provisions are always subject to change according to emotions and spur of political development.

2.    It tends to cause confusion in the interpretation of some provisions rooted in custom and usages since it is not a product of a deliberate and formal legal process.

REQUISITES OF A GOOD WRITTEN CONSTITUTION

As to form (a good written constitution should be:

1.   Brief. It should not be too detailed because if it were so it would lose the character of a fundamental law.

2.   Broad. A written constitution must be broad and comprehensive to cover general statements from structures and powers of the government to the relationship between government and its citizens.

3.   Definite. It should not be ambiguous that it would not lead to different interpretation.

As to content

1.   Constitution of government. This contains provisions with the structure of government and its power.

2.   Constitution of liberty. This contains provisions which enumerate the fundamental rights of the people and the limits to power of government so that peoples liberty and freedom may be secure.

3.   Constitution of sovereignty. This contains provisions which define the procedures for amending or revising the constitution.

Basic principles of government

Expressed in the constitution of the Philippines

1.   The supremacy of the constitution. There is no foundation and basis for all decisions and action of the government or its agencies but the constitution.

2.   The rule of majority with respect to the rights of minority. Basically one half plus one of a given number constitute majority.

a.   Simple majority. It means one half plus one of a given number.

b.   Two-third majority. Two third of a vote given number is required to decide on an issues.

c.   Three-fourths majority

3.   The observance of government of laws and not of men. No person from the highest government official of the land to the lowest member of society is above the law.

4.   Collective will of the people that must prevail over any existing statute or policy when a situation demands.

reflection:the constitution is more than an instrument that serves to retain governments power and defines its relationship to the citizens. this means that, it minimize the or control the over power of officials. the constitution holds the control and a model for a better government . it must be clear and have a manner in its rule.

Concept of Government

Chapter 3                                 Concept of Government

Government- is the agency or instrumentality trough which the will of the people is formulated expressed and realized. (Cruz 1991).
-      Is the body of people and institution that that make and inforce laws for society (Austin 1993).
Government and other organizationOther social organizations- authority applies only to its members. Membership is voluntary and by conscious choice. Rules made by one organization may be different from another and binding only to its members.Government- authority is comprehensive and it embraces all citizens. Membership does not apply but one automatically becomes a subject to its authority at birth. Rules are binding to all organization private or government.
Basic duties of Government1.   Insure domestic peace and order – such as enforcement of traffic rules maintenance of an effective police force suppression of domestic violence settling of individual or group dispute by an independent court conduct of rescue and relief operation during calamities protection of private property and lives of citizens.
2.   Establish the defense of the state and preservation of independence – like forging military alliance such as the North Atlantic Treaty Organization (NATO) and RP-US Military Defense treaty or ASEAN Region Forum (ARF) to establish diplomatic ties with other states and build strong armed forces.
3.   Promote physical social and economic well-being of the people- implementation of social legislation such as land reform provide equitable distribution of property maintain public hospital free public education provide low cost housing provide employment opportunities and implement sports program.
4.   Promotion of general welfare public safety and public morality – enforce health standard regulate business to protect consumer arrest spread of diseases disallow driving clubs with bold shows prohibit illegal gambling and confiscate pornographic material.
5.   Secure economic development – maintain relationship with other state seek membership in international trade organization like APEC world trade organization adopt sound monetary and fiscal policies.
Technically speaking these duties and functions of the government fall under either of the following:CONSTITUENT FUNCTION (CRUZ 1991) such as maintainance of peace and order protection of person ad property and defense of the state.
MINISTRANT FUNCTIONS such as providing for free elementary and secondary education and low cost housing.
Approaches in Promoting the General Welfaresa)   Laissez-faire approach- literally means “Let Alone”.
                                       - Government should allow natural order to take place such as operation of market forces (law of supply and demand).
 b)   Socialist Approach- Government paly a big role in the economy.
                                 - Government determines what how and for whom to produce and distribute government service equitably for its citizen.
c)   Welfare-State Approach- a combination of laissez-faire and socialist approach.

reflection: the concept of government is the instrument of the people to have a good nation and the institution that forms some rules to protect the rights of the people and to reduce the rebellion others. the government give welfare and help people to have a good life for them not to suffer poverty.
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1987 PHILIPPINE CONSTITUTION