HUMAN RIGHTS LAW COMMISIONER RENE SARMIENTO I. II.
INTRODUCTION BILL OF RIGHTS Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. Section 14. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.
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III.
THE NATURE OF HUMAN RIGHTS Human Rights are the aggregate of (PCBEM) privileges, claims, benefits entitlements and moral guarantees that pertain to man because of his humanity. Jose Zalaquett: human rights are regarded as a system of values or as elements which are inherent to human dignity Jean Jacques Maritain: The human person possesses rights because of the very fact that it is a person, a whole, a master of itself, and of its acts, and which consequently is not merely a reason to an end, but an end which must be treated as such; written “ The Rights of Man” Pope John XXIII : any human society, it if is to be well-ordered and productive, must lay down as a foundation, this principle, that every human being is a person, that is, his nature is endowed with intelligence and full will; written “Pacem in Terris” Winluck Wahiu : Human rights are the legal and moral entitlements that have evolved as a basis for constructing how state power is used and particularly to limit its use against the rights of citizens. Jose W. Diokno: no cause is more worthy than the cause of human rights and they are what make man human. Three generation of rights: (according to Karel Vasak) a) civil and political rights (liberty rights) - evolved over centuries during the long development of democratic society and serve as protection of the individuals from arbitrary exercise of police power - Winluck Waihu: these are negative rights because it prevents the State from doing harmful acts b) economic, social, and cultural rights (equality rights) - inspired by the following: 1) experience of 3rd world countries in their struggle against colonialism 2) influence of socialism 3) encyclicals of the Popes c) solidarity rights or collective rights ( solidarity rights) - intended to benefit individuals, groups and peoples and its realization will need global cooperation based on international solidarity d) emerging rights (e.g., right to water) Three divisions/slogans : Liberty, Equality, Fraternity (French Revolution’s slogans) Three Principles of Human Rights: a) Universality – rights are to be enjoyed by all human beings without distinction of any kind, such as race, color, sex, or language,religion, political and other opinion, national or social origin, property, birth or other stature. Human rights belong to everyone b) Indivisibility- first and second generation of rights form an indivisible whole only if these rights are guaranteed c) Interdependence- generation of rights are inter-related and of equal importance Characteristics of Human Rights a) Inherent- rights are the birthright of all human beings, existing independently of the will of either an individual human being or group. They are not obtained and granted through any human intervention b) Inalienable- no person can deprive another of these rights and no person can repudiate these rights by himself. Rights cannot be the subject of commerce c) Universal – rights belong to every human being no matter what he or she is like
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Stages of human rights 1) Idealization – notions about human rights have stated in the realm of ideas that reflect a consciousness against oppression, dehumanization, or inadequate performance by the State 2) Positivization- support for the ideas became strong and the stage is set to incorporate them into some legal instruments, whether domestic law or international law 3) Realization – enjoyed by the citizens of the State by the transformation of the social, economic, and political order. Three (3) Obligations of State Parties a) Obligation to Respect - Found in Article 2(1) of the ICCPR - Negative character of the civil and political rights - State Parties must refrain from restricting rights where such is not expressly allowed b) Obligation to Ensure - Found in Article 2(1) of the ICCPR - Positive character of the civil and political rights and the economic, social and cultural rights - State Parties must be proactive to enable individuals to enjoy their rights (e.g., adopting measures in providing effective remedy to victims of HR violators) c) Obligation to Protect - Included in the obligation to ensure - Preventing private individuals, groups or entities from interfering with the individual’s civil and political rights - Horizontal effects (application of HR between individuals or other private subjects) Elements of Human Rights 1) Subject (person) 2) Object (right involved) 3) Implementation Soriao Vs Pineda: Soriao was not allowed to enrol via verbal instruction of Pineda in his High School (in Aurora). CA was correct in ordering the school to readmit Soriano as he was dismissed without due process Oposa vs Factoran: class suit. Timber License Agreements (TLAs) Section 16, Art II of 1987 Constitution. Right to a balanced and healthful ecology Non-impairment clause. Intergenerational responsibility. A timber license is an instrument by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. It is not a contract within the purview of the due process clause. Stonehill vs Diokno. Illegal Search and Seizure. Central Bank Law, Tariff and Customs Laws Requisites of a valid warrant: 1) that no warrant issue but upon probable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrant shall particularly describe the things to be seized. None of these requirements has been complied with in the contested warrants. Warrant issued is a general warrant covering all business transactions whether legal or illegal. Moncado Doctrine abandoned (admissible on the doctrine that the criminal must still be prosecudted even if the constable has blundered) US vs Bustos (1909): privileged communication. It was proven that it is made with malice. It was not the purpose of the Legislature to make the "private communication" in section 9 of Act No. 277 "absolutely privileged." Such communications must also be free from malice. The mere fact that a private communication is made in good faith, and so forth, under section 9 (Act No. 277), will not relieve the party from responsibility, unless he can show that the same was made "with good motives," "for justifiable ends" and with "justifiable motives" and without malice. Section 9 (Act No. 277) provides that such communication must be made with the sole purpose of protecting the interests (a) of the one making it and (b) of the one to whom it is made. Such communication must be made to persons who have power to furnish such protection. Otherwise
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such communication would be idle and that provision of the law meaningless. It is appears that the communication was made maliciously or to persons who could not furnish the protection, then the mere pretext can not furnish protection under the law nor furnish an occasion for a privileged communication. US vs Bustos (1918) A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contained criminatory matter which without this privilege would be slanderous and actionable. A pertinent illustration of the application of qualified privilege is a complaint made in good faith and without malice in regard to the character or conduct of a public official when addressed to an officer or a board having some interest or duty in the matter. Even when the statements are found to be false, if there is probable cause for belief in their truthfulness and the charge is made in good faith, the mantle of privilege may still cover the mistake of the individual. But the statements must be made under an honest sense of duty; a self-seeking motive is destructive. Personal injury is not necessary. All persons have an interest in the pure and efficient administration of justice and of public affairs. The duty under which a party is privileged is sufficient if it is social or moral in its nature and this person in good faith believes he is acting in pursuance thereof although in fact he is mistaken. The privilege is not defeated by the mere fact that the communication is made in intemperate terms. A further element of the law of privilege concerns the person to whom the complaint should be made. The rule is that if a party applies to the wrong person through some natural and honest mistake as to the respective functions of various officials such unintentional error will not take the case out of the privilege. Villavicencio vs Lukban. Mayor Lukban sending 170 women to Davao Right to Domicile. Habeas Corpus. Mayor Lukban found in contempt for failing to produce the bodies. IV.
Sources and Foundations of Human Rights Law Sources of Human Rights 1) Constitution 2) Statutes 3) International Bill of Rights 4) Philosophy 5) Religion CONSTITUTION The basic source of human rights law in the Philippines is the 1987 Constitution (also called Human Rights Constitution). 1897 Biak na Bato Constitution >> 1899 Malolos Constitution >> 1935 Constitution >> 1943 Constitution >> 1973 Constitution >> 1986 Freedom Constitution 1st generation of rights 2nd generation of rights
3rd generation of rights
Article 3- Bill of Rights Article 12- National Economy and Patrimony Article 13- Social Justice and Human Rights Article 14- Education, Science and Technology, Arts, Culture, and Sports Article 2- Declaration of Principles and State Policies Article 15- The Family
1987 Constitution – Commission on Human Rights - To investigate human rights violations involving civil and political rights whether committed by government or by non-governmental entities - Establish a program of education and information to enhance respect for the primacy of human rights.
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STATUTES Examples (see pg 6-7) 1st generation 2nd generation 3rd generation
Speedy Trial Act Penalizes Acts of Torture RA 9745 Comprehensive Agrarian Reform Law The Cooperative Code Philippine Clean Air Act Rape Victim Assistance and Protection Act (RVAPA)
INTERNATIONAL BILL OF RIGHTS Incorporation Clause – The Philippines renouncer was as an instrument of national policy, adopts the generally accepted principles of international laws as part of the law of the land.. (Art. II sec 2) International Bill of Rights: a) Universal Declaration of human Rights (8-member committee chaired by Ms. Eleanor Roosevelt) b) International Covenant on Civil and Political Rights c) International Covenant on Economic, Social, and Cultural Rights U Thant – the Three documents plus the Original Protocol to the Covenant on Civil and Political Rights is the Magna Carta for mankind, and is the essential prerequisite for peace at home and in the world. On Universal Declaration of Human Rights - Prepared by the CHR of the UN - drafting committee with 8 members - chaired by Mrs. Elanor Roosevelt - Carlos Romulo was the only Filipino member - Submitted by the committee to UN General Assembly through Economic and Social Council - Adopted by 48 votes in favour, none against, and 8 abstentions - First internationally adopted catalogue of human rights Mary Robinson, former High Commissioner for Human Rights: the common language of humanity, the language of human rights, is enshrined in the declaration. Preamble to the Declaration -refers to the concepts of inherent human dignity and one inalienable nature of human rights as the philosophical sources of the Declaration and inspiration for further development of human rights. 4 Freedoms Message to the US Congress by Franklin Roosevelt: 1) Freedom of speech 2) Freedom of belief 3) Freedom from fear 4) Freedom from want PHILOSOPHY Western Philosophers: John Locke – wrote Second Treatise of Government, sovereignty resides in the people and explained the nature of government in terms of natural rights and social contract Jean Jacques Rousseau – The Social Contract, a social contract by which the citizens surrender their rights to the “general will” of the people which must aim at the impartial good. The duty of the Government is to promote impartial good Note: In the PH, social contract is embedded in the Preamble
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Baron de Montesquieu- The Spirit of the Laws. Despotism, a single person directs everything by his own will and caprice, as a standing danger for any government not despotic and argued that it could best be prevented by a system of separation of powers. The theory initially inspired the US Consti Convention Note: James Madison was inspired by the work of Baron. He introduced the principle of separation of powers in the US Constitutional Convention Filipino Philosophers: Rizal- Man is a masterpiece of creation and perfect within conditions under which he was created, to the extent that it would not be possible to deprive him of any of those component conditions whether moral or physical, without disfiguring him or making him unhappy. There is an intrinsic value in man which must be either left unmolested or allowed to develop. This implies that man should be looked upon as an end and never as means Mabini- Since God gave man his life, it was both a right and duty to preserve it in accordance with one’s ability and natural strength. Freedom is the right to acquire all means to preserve life, provided that the actions involved were in accordance with what was reasonable. Jacinto- Certain qualities such as liberty and equality belongs to man qua man. Freedom and equality can be recaptured by the development of reason in people, for it impels men to love and help mankind. RELIGION (see verses in book) Mary’s Magnificat Jose Diokno’s Human Rights Make Man Human - Human Rights are enumerated in the following documents:
International Documents
National Documents -
1) Universal declaration of Human Rights 2) International Covenant on Economic, Social and Cultural Rights 3) International Covenant on Civil and Political Rights 4) Declaration and Action Programme on the Establishment of a New International Economic Order 5) Economic Rights and Duties of States 1) 1898 Malolos Constitution 2) 1935 Constitution
A) Rights of Man: arise from the fact that all of us are equal when we are born; the right to life id more than the right to live, it is the right to live in a manner that befits our common human dignity and enables us to bring our particular talents to full flower. B) Rights of the People: rights which belong to each of us individually but which we can exercise only collectively as a people C) Society can act only through government. Government always remains an agent and never becomes a society itself, nor the people themselves. Government doesn’t seek the people’s welfare; on the contrary, it oppresses people. 2 conclusions: 1) Meaning of words: a) National security- security of the people and not of the governors b) Economic development- improvement of the standard of living of all the people, not the enrichment of the governors 2) Since government is merely an agent, people have the right to change the governors and the structure and system of the government itself, and if people cannot do so peacefully, they have recourse of rebellion against tyranny as a last resort. Rights of Man 1) Right to Life- man’s most basic right; right to health, work, etc.
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Rights of the People 1) Right to Survive- people’s most basic right; right to peace, non-aggression,
2) Right to Human Dignity- rights to recognition everywhere as a person, to honor and reputation, etc. 3) Right to Develop as a Man- right to education, form association, live in national and international order. -
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to share in international trade. 2) Right to Self-Determination- right to sovereign equality in international affairs, freedom from racial discrimination,etc. 3) Right to Develop as people- right to freely choose the goals and means of development, to implement social and economic reforms, etc.
2 Distinction of Rights 1) Absolute- cannot be limited in any way under any circumstances, not even under the gravest of emergencies (e.g., right to freedom of thought, religion, free from torture,etc.); nothing justifies imposing any limitation on them 2) Not absolute- may be and in fact must be limited to preserve social life (e.g., freedom of expression, assembly, association); emergency must be so grave in order to justify. To be valid, 3 conditions must concur: a) Provided by law, not by executive whim b) Necessary to preserve society, or protect public health, morals or similar rights of others c) Must not exceed what is strictly necessary to achieve their purpose Problems related to rights of man: Salvaging, poor health, unemployment,low wages (exploitation of labor by a)keeping wages low, b) allowing conditions of work bordering slavery)exploitation,suppressing dissent (violates right to peaceful assembly) Why are the rights of man so blatantly violated? 1) On why decent men depress wages and exploit workers: The system is excessively materialistic and we have an underdeveloped economy. The system stresses efficiency, profits, and competition and ignores whatever cannot be expressed in pesos. It honors a man more for what he has than for what he is. 2) On why good men salvage and torture and shoot into unarmed crowds of peaceful marchers: They are influenced by US mentors and cold ware propaganda. The military mind jumps to 2 wrong conclusions (1. Communists should not be allowed to exercise legal rights and 2. Anyone who opposes or criticizes government is a communist sympathizer, and so were not reluctant to shoot unarmed crowds) Problems related to rights of people: Survival is not in our hands (Marcos regime, US’ influence) and Economic policy decided by aliens (given already to World Bank, IMF, ADB meeting demands of international trade instead of people’s needs) How do we change the situation? 1) Convince the government to change policies a) As individuals- by refusing to accept meekly the violations of our rights and those of others (e.g., join protests, write publicly, etc.) b) As a group- work with organizations 2) Change the government- (unrealistic) Still, no guarantee that we will succeed. Only God can give that guaranty. It is extremely dangerous to defend our rights, but it would be indefinitely worse not to do so.
Emilio Jacinto’s Kartilla ng Katipunan -“Cartilla” a primer for elementary students Apolinario Mabini’s The Ten Decalogue 1.) Love for God 2.) Love for Country 3.) Love for Country Men Federalist 51 on Separation of Powers: - Defending the separation of powers; checking ambitions of each other (department) - Members of each department should have as little agency as possible in the appointment of the members of the others and such appointments must be drawn from the people. Exception: Judiciary department
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V.
1) Has peculiar qualifications for its members 2) Permanent tenure of the appointments in this department destroys all sense of dependence on the authority conferring them If men were angels, no government would be necessary It is not possible to give each department an equal power of self-defense a) Republican government- legislative authority predominates, weak executive authority Remedy divide the legislature into different branches and render them as little connected with each other 2 considerations particularly applicable to the federal system of America 1) a. Single republic- all power surrendered by the people is submitted to the administration of a single government b. Compound republic- power surrendered by the people is first divided between 2 distinct governments, and then the portion allotted to each subdivided among distinct and separate departments 2) Important in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. 2 methods to protect the rights of minority against the common interest of the majority: 1) Creating a will in the community independent of the majority, that is, of the society itself Prevails in all governments possessing a hereditary or self-appointed authority 2) Comprehending in the society so many separate descriptions of citizens as will render an unjust combination of majority of the whole very improbable, if not impracticable. Exemplified in the federal republic of the US In a free government, the security of civil rights must be the same as that for religious rights
Civil and Political Rights Biak na Bato Constitution 1935 Consti 1973 Consti 1986 Consti 1987 Consti 1899 Malolos Consti 1943 Consti
No Bill of Rights Bill of Rights The Filipinos and Their National and Individual Rights Duties and Rights of the Citizen
Bill of Rights - Enumeration of civil and political rights that are self-executing - Serves as restriction upon powers of the State Government
Bill of rights provisions in Art. 3 1987 Consti and Art. 4 1973 Consti can be classified into 4 types
Completely new provisions Old provisions that contain amendments by addition Old provisions amended by deletion of words and phrases Old provisions that remain intact
Fr. Joaquin Bernas- “What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder” Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHIL) First substantive agreement signed by the Negotiating Panels of the Government and National Democratic Front Signed in Hague, Netherlands Product of years of peace talks and consultations with their principles The three principles of HR (universality, indivisibility and interdependence) are enunciated in the agreement through numerous rights (see pg.12 for examples)
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Consists of 7 parts as follows: 1) Preamble- introduces the Agreement and articulates the reasons and intentions of the parties 2) Declaration of Principles 3) Bases, Scope, Applicability 4) Respect for Human Rights 5) Respect for International Humanitarial Law 6) Joint Monitoring Committee 7) Final Provisions
Art 3- Art 21 of the Universal Declaration of Human Rights contains the catalogue of civil and political rights of the first generation (see pg.13 for examples) International Covenant on Civil and Political Rights - Adopted by 106 States; effective in 1976 - Divided into following parts: 1) Preamble Parts 1-3 Contain all substantive rights and some general (Article 1-27) provisions (e.g., gender equality) 2) 6 Parts Parts 4-6 International monitoring provisions, principles of (Article 28-53) interpretation and final clauses -
Examples of individual rights enumerated in Part 3: a) Prohibition of torture, slavery b) Right to personal liberty and security c) Freedom of movement, etc. Title Description First Optional Protocol to the Provides for possibility of Covenant individual complaints Second Optional Protocol to the Abolition of death penalty Covenant Orquiola vs Tandang Sora: Government of Hongkong vs Olalia: Rubi vs Provincial Board of Mindoro Hudgens vs NLRB Javier vs COMELEC
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Votes 66-2 with 38 abstentions 59-28 with 48 abstentions
VI.
Economic, Social, And Cultural Rights Article on Social Justice and Humarn Rights cannot be found in previous Constitutions, Includes rights like rights of all workers to self-organization, collective bargaining, negotiations, and peaceful concerted activities; right to security of tenure, humane conditions of work, and a living wage; right to agrarian and natural resources reform; right to urban land reform and housing; right to health; and right of working women by providing them safe and healthful working conditions Social Justice is the centrepiece of the 1987 Constitution and rights, dignity, and participation remain illusory without social justice. – Commissioner Teresa Nieva, Chariperson of the Committee on Social Justice in the 1986 ConCom Social Justice – neither communism nor despotism, not atomism, nor anarchy, but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. –Jose P. Laurel in Calalang vs Williams Universal Declaration of Human Rights Articles 22 to 27 enumerates rights such as right to social security, right to work, right to rest and leisure, right to an adequate standard of living, right to education, and right to participate in the cultural life. They served as an inspirational tool for regional human rights instruments and national constitutions. African Charter on Human and People’s Rights protect the right to work (Art 15), right to health (Art 16), right to education (Art 17). European Social Charter recognizes the right to work, to favourable working conditions, the right to join trade unions and to take collective labor (Art 1 to 10), right to health (Art 11), right to social security, including the right to medical assistance and right to welfare services (Art 12 -14). International Covenant on Economic, Social, and Cultural Rights - Sister covenant of the ICCP. These 2 covenants were adopted unanimously by 106 states. - 31 Articles contained in six sections: the Preamble and Parts I to V. - Part III lists the rights to be protected. Right to work (Art 6), right to fair conditions of employment (Art 7), right to join and form trade unions (Art 8), right to social security (Art 9), right to protection of the family (Art 10), right to an adequate standard of living, including right to food, clothing and housing (art 11), right to health (Art 12) right to education (Art 13), right to culture (Art 15) International Covention on the Rights of the Child, Convention on the Elimination of All Forms of Discrimination Against Women, instruments of the International Labor Organization. Calalang vs Williams (animal-drawn vehicles) To this fundamental aim of our Government the rights of the individual are subordinated. Liberty is a blessing without which life is a misery, but liberty should not be made to prevail over authority because then society will fall into anarchy. Neither should authority be made to prevail over liberty because then the individual will fall into slavery. The citizen should achieve the required balance of liberty and authority in his mind through education and, personal discipline, so that there may be established the resultant equilibrium, which means peace and order and happiness for all. The moment greater authority is conferred upon the government, logically so much is withdrawn from the residuum of liberty which resides in the people. The paradox lies in the fact that the apparent curtailment of liberty is precisely the very means of insuring its preservation Social justice, therefore, must be founded on the recognition of the necessity of interdependence among divers and diverse units of a society and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life, consistent with the fundamental and paramount objective of the state of promoting the health, comfort, and quiet of all persons, and of bringing about "the greatest good to the greatest number."||| MMDA vs Concerned Residents of Manila Bay GR No. 171947 (cleaning of manila bay)
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JMM Productions vs CA The latin maxim salus populi est suprema lex embodies the character of the entire spectrum of public laws aimed at promoting the general welfare of the people under the State's police power. As an inherent attribute of sovereignty which virtually "extends to all public needs," this "least limitable" of governmental powers grants a wide panoply of instruments through which the state, as parens patriae gives effect to a host of its regulatory powers. Under the welfare and social justice provisions of the Constitution, the promotion of full employment, while desirable, cannot take a backseat to the government's constitutional duty to provide mechanisms for the protection of our work-force, local or overseas Bernardo vs NLRC GR 122917 (deaf-mutes of Far East Bank) In rendering this Decision, the Court emphasizes not only the constitutional bias in favor of the working class, but also the concern of the State for the plight of the disabled. The noble objectives of Magna Carta for Disabled Persons are not based merely on charity or accommodation, but on justice and the equal treatment ofqualified persons, disabled or not. In the present case, the handicap of petitioners (deaf-mutes) is not a hindrance to their work. The eloquent proof of this statement is the repeated renewal of their employment contracts. Why then should they be dismissed, simply because they are physically impaired? The Court believes, that, after showing their fitness for the work assigned to them, they should be treated and granted the same rights like any other regular employees Kalikasan vs DENR (2012)
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Social Justice: Roots and Wings The concept of social justice has been cited in (SPINS): a) Speeches of political leaders b) Papal encyclicals c) International instruments d) National constitutions e) Supreme court decisions Societies grapple with new challenges arising from poverty, inequality, violence, climate change and democratic deficits The biblical roots of social justice are found in the Old Testament and the New Testament. Justice: merciful, compassionate and bold concern for the outcasts, the poor, the widow, the orphans, the distressed, the hungry, the persecuted, the victims of injustice and PWDs. Paul Louis Mertzger- bibilical justice involves making individuals, communities and the cosmos whole by upholding both goodness and impartiality Verses in the old testament: a) Isaiah 1:17- Learn to do right, seek justice. Defend the oppressed. Take up the cause of the fatherless; plead the care of the widow b) Zechariah 7:9- Administer true justice; show mercy and compassion to one another c) Other teachings are found in Proverbs, Amos, Psalm, Isaiah, etc. Verses in the new testament: a) John 3:17-18- If anyoe has the world’s goods and sees his brother in need, yet closes his heart against him, how does God’s love abide in him? b) Luke 4:18-19- The spirit of the Lord is upon me, because he anointed to proclaim good news to the poor. He has sent me to proclaim liberty to the captives and recovering sight to the blind, to set at liberty to those who are oppressed, to proclaim the year of the Lord’s favor. Fr. Luigi Taparelli- wrote “Civilta Cattolica” based on the philosophy of St. Thomas Aquinas. He argues that competing capitalist and socialist theories undermined the unity of society present in Thomistic metaphysics as neither sufficiently concerned with moral philosophy. John Stuart Mill- British philosopher wrote “Utilitarianism”. He said that society should treat all equally well who have deserved equally well of it, that is, who have deserved equally well absolutely. This is the highest abstract of standard of social and distributive justice towards which all institutions and efforts of citizens should be made in the utmost degree to converge.
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Popes who advocated the promotion of social justice as a means to address the concerns of the poor in their encylicals: 1) Pope Leo 13th- Rerum Novarum (On the Condition of the Working Classes); he is a former student of Fr.Taparelli 2) Pope Pius 11th- Quadrragesimo anno (On Reconstruction of Social Order) 3) Pope John 13th- Paccem in Terris 4) Pope Paul 6th- Populorum Progressio 5) Pope John Paul 2nd- Laborem exercens, Sollicitudo rei socialis and Centesimus annus 6) Pope Benedict 16th- Deus caritas est 7) Pope Francis- Laudato Si Claro M. Recto- president of the 1934 Constitutional Convention who suggested to the sub-committee of seven to draft the section on social justice in the 1935 Consti. Sec 5: The promotion of social justice to insure the well being and economic security of all the people should be concern of the State. Jose C. Locsin- defined the meaning of social justice in the 1934 Consti Convention as “justice to common tao”, the little men so called. It is justice to him, hiw wife, and children in relation to their employees in the factories, farms and other employments. Justice in the education of children and his dealings with the different government offices including the courts of justice. Manuel Quezon- included in his Code of Citizenship and Ethics a 14th provision which states “Contribute to the welfare of your community and promote social justice. You do not live for yourselves and your families alone. You are part of society to which you own definite responsibilities” Examples of statutory enactments of social justice: a) Minimum Wage Law b) Creating of SSS c) Makes compulsory elementary education d) Industrial Peace Act e) Magna Carta for Public School teachers f) Prohibits work on Sunday, Christmas, New year, Holy Thursday, etc Ramon Magsaysay- introduced the dictum that those who have less lin life should have more in law The 1935 Consti was revised because of historic events in the PH. Nevertheless, provision on the social justice remains intact. 1) 1941- World War 2 2) 1971- Massive multi-sectoral demonstrators shook the government 3) 1986- EDSA revolution 1943 Japanese Consti and 1973 Consti
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1987 Consti Social justice is not only a provision but a separate article entitled “Article on Social Justice and Human Rights”. It is the only constitution in the world with a distinct article on social justice
Social justice defined in Calalang vs Williams by Justice Jose Laurel, a delegate to the 1934 Constitutional Convention and a member of the Sub-Committee of Seven. Philippine Apparel Worker’s Union vs NLRC (1981) Justice Fernando- social justice has an even more basic role to play in aiding those whose lives are spent in toil, with destitution an ever-present thereto to attain a certain degree of economic well-being Llamanzares-Poe vs COMELEC- no such intent or language permitting discrimination against foundlings, on the contrary, all constitutions guarantee equal protection of the laws. State value human dignity and protects the rights of children without regard as to whether he is a foundling or not. Social Justice in elections- launching of initiatives of the COMELEC to empower detainees to vote, PWDs to register as voters and indigenous people to register in their mountain habitat (separate voting centers are now provided in Mindoro during 2016 elections)
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CHAPTER 5. SOLIDARY/ COLLECTIVE RIGHTS (THIRD GENERATION OF RIGHTS) Right to Peace – constitute a fundamental obligation of each State - Conflicts of a non-international character have reached more than 170M in the 20 th century - UN Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States, UN General Assembly Resolution 33/73 Declaration on the Preparation of Societies for Life in Peace, Declaration on the Right of Peoples to Peace of 1984, UNGA Resolution 57/216 Promotion of the Right of Peoples to Peace, UNGA Resolution 45/14 Implementation of the Right of Peoples to Peace Right to development – comprehensive economic, social, cultural, and political process which aims at the constant improvement of the well-being of the entire population and of all individuals through their meaningful participation. - Process of expanding the freedoms that people enjoy and requires the removal of major sources of freedom like poverty, tyranny, poor economic opportunities, systematic social deprivation, neglect of public faculties, intolerance or over activity of repressive states (Amartya Sen) - Poverty embraces the spectrum where freedoms are diminished and denied - Proclaimed in the UN Declaration on the Right to Development (1986) - Also recognized in African Charter on Human Rights, People’s Rights, Arab Charter on Human Rights, 1992 Rio Declaration on Environment and Development, 1993 Vienna Declaration and Programme of Action, Millennium Declaration, 2002 Monterey Consensus, 2005 World Summit Outcome Document, 2007 Declaration on the Rights of Indigenous People Right to environment –human rights and environmental protection are connected - Man has fundamental right to environment that permits a life of dignity and well-being became explicit at the Stockholm Conference (1972). This is an important starting point in developing environmental law at the global and national levels. - Man has fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. –Principle 1 of Stockholm Declaration - Mentioned in IC-ESC Some treaties that contain environmental obligations for States include the 1972 World Heritage Convention, the 1985 Vienna Convention, the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, the 1989 Basel Convention on the Control of Transbounddary Movements of Hazardous Wastes and their Disposal, 1992 Convention on Biological Diversity. Women, children, PWDs are most vulnerable, disadvantaged, and marginalized. Women – denial includes death from pregnancy childbirth, HIV infection, gender-based violence kills, cancer - Twice as likely as men to be illiterate, earns less - Many countries that ratified Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) still have discriminatory laws - Instruments include The Declaration on the Elimination of Discrimination Against Women, CEDAW, Convention on the Political Rights of Women and Declaration on the Protection of Women and Children in Emergency and Armed Conflict. Children – because of their vulnerability, are in need of special care, attention and protection. - Convention on the Rights of the Child (the first legally binding international instrument on children’s rights) which enumerates three (3) basic rights: right to survival, right to develop to the fullest, protection from harmful influences, abuse and exploitation, and participate fully in family, cultural, and social life. - Optional Protocol on the involvement of children in armed recruitment- and requires States to do everything they can to preent children under 18 from taking direct part in hostilities - Optional Protocol on the sale of children, child prostitution, and child pornography- criminalization of serious violation of human rights and emphasizes public awareness and international cooperation
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PWDs -
those who have long-term physical, mental, intellectual, or sensory impairments, which in interaction with various barriers may hinder them full and effective participation in society on an equal basis with others. (Art 1 , UN Convention on the Rights of PWDs) - Those suffering from restriction or different abilities, as a result of mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being. (RA 7277, Magna Carta for Disabled Persons) - UN estimates up to 50M PWDs in the world, WHO estimates 15% of population to have a disability - They suffer discrimination and do not enjoy same opportunities because of lack of access to essential services - Instruments include Declaration on the Rights of Disabled Persons, Declaration on the Rights of Mentally Retarded Persons, Dec. on the Rights of Deaf-Blind Persons, Convention No 59 concerning Vocational Rehabilitation and Employment, Principles for the Protection of Persons with Mental Illneses and Improvement of Health Care, Standard Rule on the Equalization of Opportunities for Persons with Disabilities, Beijing Declaration on the Rights of People with Disabilities, Convention on the Rights of Persons with Disabilities Indigenous Peoplethose that have historically belonged to a particular region or country before its colonization or transformation into a nation, state and may have different cultural, linguistic, traditional, and other characteristics to those of the dominant culture of that region or state.(UN Permanent Forum on Indigenous Issues) - 370M spanning 70 countries in 2010 - 10% of Philippine population of 100M - Poor access to basic social services and limited opportunities for mainstream economic activities, inadequate political representation, vulnerable to development aggression - Indigenous people have suffered from historical dispossession of their lands, territories, and resources, preventing them from exercising their right to development (UN Dec. on Rights of Indigenous Peoples 2007) most comprehensive instrument detailing the rights of indigenous peoples in international law and policy. Includes rights such as self-determination, lands, territories and resources, helath, education, employment, housing, sanitation, social security, adequate standard of living, right not to be subjected to assimilation or destruction of culture, right to practice, and revitalize traditions and customs, etc. Declaration on the Right of Peoples to Peace Convinced that life without war serves as the primary international prerequisite for the material well-being, development and progress of countries, and for the full implementation of the rights and fundamental human freedoms proclaimed by the United Nations, 1. Solemnly proclaims that the peoples of our planet have a sacred right to peace; 2. Solemnly declares that the preservation of the right of peoples to peace and the promotion of its implementation constitute a fundamental obligation of each State; 3. Emphasizes that ensuring the exercise of the right of peoples to peace demands that the policies of States be directed towards the elimination of the threat of war, particularly nuclear war, the renunciation of the use of force in international relations and the settlement of international disputes by peaceful means on the basis of the Charter of the United Nations; 4. Appeals to all States and international organizations to do their utmost to assist in implementing the right of peoples to peace through the adoption of appropriate measures at both the national and the international level. Convention on Biological Diversity Adopted in Rio de Janeiro during the Earth Summit. The Convention on Biological Diversity was negotiated under the auspices of the United Nations Environment Programme (UNEP). It was opened for signature at the June 1992 UN
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Conference on Environment and Development (UNCED) and entered into force on 29 December 1993, ninety days after the 30th ratification. As of October 1998, more than 170 countries had become Parties (pdf file). The three goals of the CBD are: 1) to promote the conservation of biodiversity 2) the sustainable use of its components 3) the fair and equitable sharing of benefits arising out of the utilization of genetic resources "Biological diversity" means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems. "Biological resources" includes genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity. "Ecosystem" means a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit. Objections to the Convention: It contained several provisions that would impose specific obligations on the US and the other developed nations. The convention favored the developing countries by not obligating them to conserve their genetic resources without first receiving compensation. Ultimately, the US did not sign because of the provisions pertaining to: a) selection of a financing mechanism b) transfer of technology c) treatment of intellectual property rights (failure to protect) d) safety regulations imposed on the biotechnology industry Magna Carta of Women The State condemns discrimination against women in all its forms and pursues by all appropriate means and without delay the policy of eliminating discrimination against women in keeping with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and other international instruments consistent with Philippine law. The State shall accord women the rights, protection, and opportunities available to every member of society. The State affirms women's rights as human rights and shall intensify its efforts to fulfill its duties under international and domestic law to recognize, respect, protect, fulfill, and promote all human rights and fundamental freedoms of women, especially marginalized women, in the economic, social, political, cultural, and other fields without distinction or discrimination on account of class, age, sex, gender, language, ethnicity, religion, ideology, disability, education, and status. The State shall provide the necessary mechanisms to enforce women's rights and adopt and undertake all legal measures necessary to foster and promote the equal opportunity for women to participate in and contribute to the development of the political, economic, social, and cultural realms. Section 30. Women in Especially Difficult Circumstances. - For purposes of this Act, "Women in Especially Difficult Circumstances" (WEDC) shall refer to victims and survivors of sexual and physical abuse, illegal recruitment, prostitution, trafficking, armed conflict, women in detention, victims and survivors of rape and incest, and such other related circumstances which have incapacitated them functionally. Local government units are therefore mandated to deliver the necessary services and interventions to WEDC under their respective jurisdictions. Convention on the Rights of Persons with Disabilties The purpose of the UN Convention on the Rights of Persons with Disabilities (UN CRPD) is to promote, defend and reinforce the human rights of all persons with disabilities. It therefore serves as the legal framework for CBM advocacy. First comprehensive human rights treaty of the 21st century The Convention and its Optional Protocol was adopted on 13 December 2006 at the United Nations Headquarters in New York, and was opened for signature on 30 March 2007. There were 82 signatories to the Convention, 44 signatories to the Optional Protocol, and 1 ratification of the Convention. The Convention defines "reasonable accommodation" to be "necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the
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enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms" at the Article 2 and demands this all aspects of life including inclusive education. The Convention marks a 'paradigm shift' in attitudes and approaches to persons with disabilities. It takes to a new height the movement from viewing persons with disabilities as 'objects' of charity, medical treatment and social protection towards viewing persons with disabilities as 'subjects' with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of society. Declaration on the Rights of Indigenous Peoples The UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples. While it is not legally binding on States, and does not, therefore, impose legal obligations on governments, the Declaration carries considerable moral force. The Declaration sets out the individual and collective rights of indigenous peoples, as well as their rights to culture, identity, language, employment, health, education and other issues. It also "emphasizes the rights of indigenous peoples to maintain and strengthen their own institutions, cultures and traditions, and to pursue their development in keeping with their own needs and aspirations".[6] It "prohibits discrimination against indigenous peoples", and it "promotes their full and effective participation in all matters that concern them and their right to remain distinct and to pursue their own visions of economic and social development".[6][7] The goal of the Declaration is to encourage countries to work alongside indigenous peoples to solve global issues, like development, multicultural democracy and decentralization. [8] According to Article 31, there is a major emphasis that the indigenous peoples will be able to protect their cultural heritage and other aspects of their culture and tradition, which is extremely important in preserving their heritage. The elaboration of this Declaration had already been recommended by the Vienna Declaration and Programme of Action[9] The text recognises the wide range of basic human rights and fundamental freedoms of indigenous peoples. Among these are the right to unrestricted self-determination, an inalienable collective right to the ownership, use and control of lands, territories and other natural resources, their rights in terms of maintaining and developing their own political, religious, cultural and educational institutions along with the protection of their cultural and intellectual property. The Declaration highlights the requirement for prior and informed consultation, participation and consent in activities of any kind that impact on indigenous peoples, their property or territories. It also establishes the requirement for fair and adequate compensation for violation of the rights recognised in the Declaration and establishes guarantees against ethnocide and genocide. The Declaration also provides for fair and mutually acceptable procedures to resolve conflicts between indigenous peoples and States, including procedures such as negotiations, mediation, arbitration, national courts and international and regional mechanisms for denouncing and examining human rights violations. Villegas vs Subido 109 SCRA 1 street-sweepers For the past six years at least, Filipino women have been serving in that capacity among others as Metro Aides, an innovation introduced by the First Lady. They have contributed along with the male employees in keeping Metro Manila clean, attractive, and hygienic. There has been no offense to the well-known Filipino tradition of holding the women in high esteem and respect. Moreover, as is quite obvious in civic parades where a contingent of them usually takes part, they take pride-and justly so-in what they are doing. There would even be less justification then even from the policy standpoint for a Memorandum Circular similar to that issued by respondent and justifiably nullified by the Office of the President. Moreover, the trend towards greater and greater recognition of equal rights for both sexes under the shelter of the equal protection clause argues most strongly against this kind of discrimination.||| People vs Leachon GR 108725 squatting Under Sec. 10, Art. XIII of the 1987 Constitution, what makes the eviction and demolition of urban or rural poor dwellers illegal or unlawful is when the same are not done in accordance with law and in a just and humane manner. The constitutional requirement that the eviction and demolition be in accordance with law and conducted in a just and humane manner does not mean that the validity of legality of the demolition or eviction is hinged on the existence of a resettlement area designated or earmarked by the government. What is meant by "in accordance with law" and "just and humane manner" is that the person to be evicted be accorded due process or an opportunity to controvert the allegation that his or her occupation or possession of the property involved is unlawful or against the will of the landowner; that should the
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illegal or unlawful occupation be proven, the occupant be sufficiently notified before actual eviction or demolition is done; and that there be no loss of lives, physical injuries or unnecessary loss of or damage to properties. Precisely, the enactment of an anti-squatting law affords the alleged "squatters" the opportunity to present their case before a competent court where their rights will be amply protected and due process strictly observed. By filing the proper informations in court, complainants have complied with the first requirement of due process, that is, the opportunity for the accused to be heard and present evidence to show that his or her occupation or possession of the property is not against the will or without the consent of the landowner and is not tainted by the use of force, intimidation, threat or by the taking advantage of the absence of or tolerance by the landowners.||| PT &T vs NLRC GR 118978 reliever LABOR AND SOCIAL LEGISLATION; LABOR CODE; EMPLOYMENT; EMPLOYER'S POLICY OF NOT ACCEPTING FOR WORK ANY WOMAN WORKER WHO CONTRACTS MARRIAGE, CONTRARY TO LAW, GOOD MORALS AND PUBLIC POLICY. — In the case at bar, petitioner's policy of not accepting or considering as disqualified from work any woman worker who contracts marriage runs afoul of the test of, and the right against, discrimination, afforded all women workers by our labor laws and by no less than the Constitution. Petitioner's policy is not only in derogation of the provisions of Article 136 of the Labor Code on the right of a woman to be free from any kind of stipulation against marriage in connection with her employment, but it likewise assaults good morals and public policy, tending as it does to deprive a woman of the freedom to choose her status, a privilege that by all accounts inheres in the individual as an intangible and inalienable right. Hence, while it is true that the parties to a contract may establish any agreements, terms, and conditions that they may deem convenient the same should not be contrary to law, morals, good customs, public order, or public policy. Carried to its logical consequences, it may even be said that petitioner's policy against legitimate marital bonds would encourage illicit or common-law relations and subvert the sacrament of marriage.||| Philippine Association of Service Exporters vs Drilon 163 SCRA 386 The petitioner has shown no satisfactory reason why the contested measure should be nullified. There is no question that Department Order No. 1 applies only to "female contract workers," 14 but it does not thereby make an undue discrimination between the sexes. It is well-settled that "equality before the law" under the Constitution 15 does not import a perfect identity of rights among all men and women. It admits of classifications, provided that (1) such classifications rest on substantial distinctions; (2) they are germane to the purposes of the law; (3) they are not confined to existing conditions; and (4) they apply equally to all members of the same class. 16||| (Philippine Association of Service Exporters, Inc. v. Drilon, G.R. No. 81958, [June 30, 1988], 246 PHIL 393-406)
Villavicencio vs Lukban 39 Phil 778 The forcible taking of these women from Manila by officials of that city, who handed them over to other parties, who deposited them in a distant region, deprived these women of freedom of locomotion just as effectively as if they had been imprisoned. The restraint of liberty which began in Manila continued until the aggrieved parties were returned to Manila and released or until they freely and truly waived this right Who Are The Lumads? Lumad, which is Cebuano for “native,” refers to 17 IPs in Mindanao: Atta, Bagobo, Banwaon, B’laan, Bukidnon, Dibabawon, Higaonon, Mamanwa, Mandaya, Manguwangan, Manobo, Mansaka, Tagakaolo, Tasaday, T’boli, Teduray (or Tiruray) and Ubo. With massive deforestation, logging has declined, but plantations continue, and, in recent years, large-scale mining for valuable mineral resources. Civil unrest has escalated, with the New People’s Army increasing its influence in the area. In 2008, President Gloria Arroyo ordered the establishment of an Investment Defense Force (IDF) to guard business interests and infrastructure. the Manilakbayan 2015 has a special “Save our Schools” focus, because military and paramilitary forces have been targeting lumad schools, on the suspicion that these are New People’s Army-influenced. The schools are alternatives to mainstream institutions, which tend to downgrade IP culture.
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