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Treaties in the Philippine Constitutional System

  • Diane A Desierto EMAIL logo
Published/Copyright: February 28, 2022
ICL Journal
From the journal ICL Journal Volume 16 Issue 1

Abstract

International law has always had a dual significance to the Philippine constitutional system. On the one hand, the frequent articulation of international law principles within modern Philippine constitutional norms, statutes, and administrative rules demonstrate an outward-looking normative ethos – one I have described in other scholarship to be consistent with the 1987 Philippine Constitution’s ‘universalist history’. On the other hand, the considerable volume of Philippine jurisprudence applying international law norms to date overwhelmingly illustrate how Philippine litigants have strategically deployed international law (most especially international human rights law) over the years, as an acceptable external legal basis to hold Philippine government leaders to account under the vastly expanded judicial review doctrine in the 1987 Philippine Constitution. This active individual and group resort to adjudication and legislation could explain why international law has flourished under the postcolonial and post-dictatorship 1987 Philippine Constitution. This comprehensive jurisprudential, statutory, and constitutional analysis aims to show how, and to what degree, Philippine legal culture and history reflect a continuing deep engagement with international law, in ways that are certainly unique to the Philippines’ evolving political ideologies, colonial and postcolonial history, treatment, and implementation of international treaties within the Philippine constitutional system. Most importantly, the absence of explicit methodology for the breadth of constitutional interpretation of the Incorporation Clause under the 1987 Philippine Constitution warrants normative rethinking, so as not to uniformly open the floodgates to hard international law sources (eg treaties, customs, general principles) as well as softer international instruments lacking the requisite State consent to the binding quality of such sources within the Philippine legal system. To this end, I make three proposals on how the Philippine Supreme Court could define an explicit methodology for use and interpretation of the Incorporation Clause, transparently refer to other foreign and international sources, and openly reassess its ideological bases for recognition of international law in the Philippine constitutional system, as part of the Court’s distinct judicial function.

Keywords: Philippines legal culture and history; accountability; human rights; 1987 Philippine constitution; treaties; international law in constitutional settings
Corresponding author: Diane A Desierto, University of Notre Dame Law School, Eck Hall of Law, Rm 2161, South Bend, Notre Dame, IN, 46556-0959, USA, E-mail:

Annex A

Case: Article 6 of the 2009 ASEAN Trade in Goods Agreement

The 2009 ASEAN Trade in Goods Agreement provides in Article 6 as follows:

Each Member State shall accord national treatment to the goods of the other Member States in accordance with Article III of GATT 1994. To this end, Article III of GATT 1994 is incorporated into and shall form part of this Agreement, mutatis mutandis.

Imagine in relation to your country that the government imposes a tax on products which is clearly discriminatory vis-à-vis a like competing product from another ASEAN country. This tax is only on the good (eg rubber tyres) produced abroad (in addition to custom duties) but not on the good (such as eg rubber tyres) produced locally in breach Article 6 ATIGA. The illegality of the tax would be beyond dispute since a similar tax was already found to be illegal by the WTO in relation to other countries. The tax in question would thus on the facts violate Article 6 of the Goods Agreement and we further stipulate that none of the exceptions in Article 8 of the Goods Agreement which corresponds to Article XX of the GATT applies.

What would be the legal options open to an importer who sought to get relief before a domestic court in your country? The offending Tax was already in place when the Goods Agreement was signed and came into force (2009). The offending Tax was introduced subsequent to the Agreement. The offending Tax was introduced by an administrative measure (government decree of some sort), for instance, parliamentary legislation. Describe the procedure, the exact court one might be able to approach, and the process of Appeal if there would be any.

Discussion:

The applicable law is Article 6 of the Goods Agreement.

The facts show a clear conflict exists between Article 6 of the Goods Agreement and the offending Tax introduced through an administrative measure or parliamentary legislation. Assuming that the offending Tax was introduced through a legislative statute in the Philippines,[284] that statute would be deemed co-equal in normative rank to Article 6 of the Goods Agreement. Applying the lex posterior principle,[285] the prevailing law should be Article 6 of the Goods Agreement. As the facts state above, ‘the offending Tax was already in place when the Goods Agreement was signed and came into force (2009).’ Article 6 of the Goods Agreement would likewise be the prevailing law if the offending Tax were imposed merely through an administrative issuance (inferring the authority to impose such a tax through prior delegation under a legislative statute).[286] In that case, an administrative issuance is lower in normative rank than a treaty provision, which is co-equal in rank to legislative statutes in the Philippines.

  • The importer has a direct cause of action to enforce rights under Article 6 of the Goods Agreement.

The facts do not disclose if any actions have already been taken to impose and collect the offending Tax against the importer. Assuming that tax collection has not yet been initiated against the importer, the importer may file a Petition for Declaratory Relief under Rule 63 of the Rules of Court, before the appropriate Regional Trial Court (eg If the importer is a sole proprietor or natural person, the petition must be filed in the Regional Trial Court of the place of residence of said natural person. If the importer is a corporation or juridical person, the petition must be filed in the Regional Trial Court of the corporation’s principal office as indicated in its Articles of Incorporation.[287]). A Petition for Declaratory Relief may be filed by ‘any person interested under a deed, will, contract, or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation’, who may, ‘before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder.’[288] In Commissioner of Customs et al v Hypermix Feeds Corporation, the Philippine Supreme Court affirmed the propriety of a petition for declaratory relief to challenge the legality of a tariff rate provided for by administrative issuance, and which was contrary to the prescribed limits of the Tariff and Customs Law:

The requirements of an action for declaratory relief are as follows: (1) there must be a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; and (4) the issue involved must be ripe for judicial determination.[289]

In the above Hypermix decision, the Philippine Supreme Court held that the Regional Trial Court was correct in granting declaratory relief to the wheat importer, since the Collector of Customs ‘violated respondent’s right to due process in the issuance of CMO 27-2003 [the administrative measure] when they failed to observe the requirements under the Revised Administrative Code…[and] likewise violated respondent’s right to equal protection of laws when they provided for an unreasonable classification in the application of the regulation…Commissioner of Customs went beyond his powers of delegated authority when the regulation limited the powers of the customs officer to examine and assess imported articles.’[290]

However, if the breach of the importer’s rights under Article 6 of the Goods Agreement have already taken place (eg through the imposition of the offending Tax or the initiation of measures to collect the offending Tax from the importer), the pending petition for declaratory relief will be ‘converted into an ordinary [civil] action, and the parties shall be allowed to file such pleadings as may be necessary or proper.’[291] Injunction is generally not available to restrain the collection of any national internal revenue tax, fee or charge imposed by the National Internal Revenue Code (NIRC).[292] It is not indicated in the above facts if the offending Tax is charged pursuant to the said Code. If the offending Tax is based on the NIRC, the importer must follow the assessment protest procedures under Section 228 of the NIRC, or pay the charge and file a claim for refund for tax erroneously or illegally collected under Section 229 of the NIRC.[293]

If the offending Tax is a customs charge or levy under the Tariff and Customs Code, the exclusive remedy is for the importer to avail of remedies of protest and payment in administrative proceedings before the Collector of Customs.[294] Customs Administrative Order No 3-2002 in relation to Customs Memorandum Order No 27-99 contains the procedure on protest cases against the determination of customs value and tariff classification of imported goods under the WTO Valuation Regime.[295] Actions of the Collector of Customs (eg seizure and forfeiture of goods) are appealable to the Commissioner of Customs, ‘whose decision, in turn, is subject to the exclusive appellate jurisdiction of the Court of Tax Appeals[296] and from there to the Court of Appeals.’[297] The decision of the Court of Appeals may then be elevated to the Philippine Supreme Court through an appeal by certiorari, on errors of law, under Rule 45 of the 1997 Rules of Civil Procedure.[298]

Depending on the circumstances in which the offending Tax has been levied against the importer, it may be possible to argue that the importer is not precluded from availing of the remedy of a special civil action for certiorari and prohibition under Rule 65 of the 1997 Rules of Civil Procedure, so long as the latter’s requisite elements are met. The importer may allege that: the government agencies concerned ‘acted without or in excess of its or his jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction’, ‘there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law’, and praying that ‘judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require’ and that ‘judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require.’[299] This petition may be filed with the Philippine Supreme Court.[300]

Annex B

Case: Article 8(1) of the ASEAN Comprehensive Investment Agreement (2009)

Article 8(1) provides, in relation to senior management and board of directors:

A Member State shall not require that a juridical person of that Member State appoint to senior management positions, natural persons of any particular nationality.

Imagine a case where there was either a government decree, or by legislative act, a requirement that clearly violated Article 8(1). How could this play out if an action was brought before domestic courts relying on the Agreement? A juridical person could mean a company owned or controlled by an ASEAN investor in that Member State.

Discussion:

Assuming that the legislative act in conflict with Article 8(1) of the ASEAN Comprehensive Investment Agreement (ACIA) was enacted before the Philippines signed the ACIA and the same entered into force, Article 8(1) of the ACIA would be the prevailing law under the lex posterior rule. The legislative act that presumably conflicts with Article 8(1) would be an explicit nationality requirement imposed by the Philippine legislature for senior management positions in any juridical person. Before any action to implement this legislative act is taken, it is possible for an aggrieved party to assert rights under Article 8(1) of the ACIA by filing a petition for declaratory relief with the appropriate Regional Trial Court pursuant to Rule 63 of the 1997 Rules of Civil Procedure.[301] If governmental measures are already being concretely taken to implement the legislative act (eg the aggrieved party is already being compelled by a government agency to appoint persons of a given nationality to senior management positions), the aggrieved party may file a special civil action for certiorari and prohibition under Rule 65 of the Rules of Court, along with an application for injunctive relief to restrain the implementation of the legislative act and further acts of the government agency that are in ‘grave abuse of discretion amounting to lack or excess of jurisdiction’.[302] Following the rules on hierarchy of courts, the petition for certiorari and prohibition under Rule 65 must be filed with the appropriate Regional Trial Court.[303] In very rare cases, the Philippine Supreme Court recognizes an exception to these rules on hierarchy when ‘dictated by the advancement of public policy, or demanded by the broader interest of justice, or the orders complained of were found to be patent nullities, or the appeal was considered as clearly an inappropriate remedy.’[304]

Annex C

Case: ASEAN financial contributions, AICHR, Convention on Privileges and Immunities

  • Deliberation and approval of Philippine financial contributions to the annual ASEAN budget

As of this writing, requests are still pending with the Department of Foreign Affairs’ ASEAN desk for specific documentation and records on the nominal amounts, agency disbursements, and transmission of Philippine financial contributions to ASEAN since its accession to membership in ASEAN. As a matter of public funding, however, it can be expected that these contributions would be part of the annual legislative appropriations process. Article VI, Sections 24 and 25 of the 1987 Constitution describe the Legislature’s appropriations power thus:

Section 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills, shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments.

Section 25. (1) The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law.

(2) No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates.

(3) The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies.

(4) A special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposal therein.

(5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.

(6) Discretionary funds appropriated for particular officials shall be disbursed only for public purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law.

(7) If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed re-enacted and shall remain in force and effect until the general appropriations bill is passed by the Congress.’[305]

The General Appropriations Acts passed by the Legislature annually provide for an ‘International Commitments Fund’, which includes contributions to international organizations. The 2011 General Appropriations Act indicates the following amounts allocated to ASEAN (and ASEAN-related initiatives) contributions:[306]

Total International Commitments Fund Php 3,174,820,000
Total Contributions to International Organizations (part of the International Commitments Fund total) Php 2,955,634,000
Total Philippine Contributions (out of the International Commitments Fund total) to ASEAN and ASEAN-related initiatives Php 391,259,000
Components of Philippine contributions:
1) ASEAN Finance Ministers’ Cooperation Fund Php 94,000
2) ASEAN + 3 Regional Experts’ Fund Php 586,000
3) ASEAN + 3 Macroeconomic and Research Office Php 8,930,000
4) ASEAN + 3 Finance Ministers Investors Forum Php 460,000
5) ASEAN Infrastructure Fund Php 276,000,000
6) ASEAN Php 100,254,000
*includes ASEAN Secretariat [Php 67,354,000]
ASEAN Development Funds [Php 4,700,000]
ASEAN Foundation [Php 4,700,000]
ASEAN-China Centre [Php 4,700,000]
ASEAN + 3 Cooperation Fund [Php 4,700,000]
ASEAN Cultural Fund [Php 4,700,000]
ASEAN-Korea Centre [Php 4,700,000]
ASEAN Centre in Moscow [Php 4,700,000]
7) ASEAN ICT Fund Php 4,700,000
8) ASEAN-China Cooperative Operations in response to Dangerous Drugs Php 235,000

There is not much variance in the above amounts of the Philippine contributions to ASEAN and ASEAN-related activities from the 2005 General Appropriations Act up to the 2010 General Appropriations Act.[307]

  • ASEAN Agreement on Privileges and Immunities

Article 13(2) of the ASEAN Agreement on Privileges and Immunities provides that ‘This Agreement shall be subject to ratification by all Member States in accordance with their respective internal procedures.’[308] The updated Table of Ratifications of ASEAN Treaties maintained by the ASEAN Secretariat indicates that the Philippines ratified this Agreement on 25 June 2010. Ratification as defined by the Philippine Supreme Court in Pimentel v Executive Secretary, [309] refers to ‘the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of government other than that which negotiated them… It is generally held to be an executive act, undertaken by the head of the state or of the government. Thus, Executive Order No 459 issued by President Fidel V Ramos on 25 November 1997 provides the guidelines in the negotiation of international agreements and its ratification. It mandates that after the treaty has been signed by the Philippine representative, the same shall be transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare the ratification papers and forward the signed copy of the treaty to the President for ratification. After the President has ratified the treaty, the Department of Foreign Affairs shall submit the same to the Senate for concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign Affairs shall comply with the provisions of the treaty to render it effective.’ Based on consultations with the relevant government agencies, the ratification process in this instance appears to have complied with the requirements of Executive Order No 459 (Providing for the Guidelines in the Negotiation of International Agreements and its Ratification):

WHEREAS, the negotiations of international agreements are made in pursuance of the foreign policy of the country;

WHEREAS, Executive Order No 292, otherwise known as the Administrative Code of 1987, provides that the Department of Foreign Affairs shall be the lead agency that shall advise and assist the President in planning, organizing, directing, coordinating and evaluating the total national effort in the field of foreign relations;

WHEREAS, Executive Order No 292 further provides that the Department of Foreign Affairs shall negotiate treaties and other agreements pursuant to the instructions of the President, and in coordination with other government agencies;

WHEREAS, there is a need to establish guidelines to govern the negotiation and ratification of international agreements by the different agencies of the government;

NOW, THEREFORE, I, FIDEL V RAMOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby order:

SECTION 1. Declaration of Policy.—It is hereby declared the policy of the State that the negotiations of all treaties and executive agreements, or any amendment thereto, shall be coordinated with, and made only with the participation of, the Department of Foreign Affairs in accordance with Executive Order No 292. It is also declared the policy of the State that the composition of any Philippine negotiation panel and the designation of the chairman thereof shall be made in coordination with the Department of Foreign Affairs.

SECTION 2. Definition of Terms.—

  1. International agreement—shall refer to a contract or understanding, regardless of nomenclature, entered into between the Philippines and another government in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments.

  2. Treaties—international agreements entered into by the Philippines which require legislative concurrence after executive ratification. This term may include compacts like conventions, declarations, covenants and acts.

  3. Executive Agreements—similar to treaties except that they do not require legislative concurrence.

  4. Full Powers—authority granted by a Head of State or Government to a delegation head enabling the latter to bind his country to the commitments made in the negotiations to be pursued.

  5. National Interest—advantage or enhanced prestige or benefit to the country as defined by its political and/or administrative leadership.

  6. Provisional Effect—recognition by one or both sides of the negotiation process that an agreement be considered in force pending compliance with domestic requirements for the effectivity of the agreement.

SECTION 3. Authority to Negotiate.—Prior to any international meeting or negotiation of a treaty or executive agreement, authorization must be secured by the lead agency from the President through the Secretary of Foreign Affairs. The request for authorization shall be in writing, proposing the composition of the Philippine delegation and recommending the range of positions to be taken by that delegation. In case of negotiations of agreements, changes of national policy or those involving international arrangements of a permanent character entered into in the name of the Government of the Republic of the Philippines, the authorization shall be in the form of Full Powers and formal instructions. In cases of other agreements, a written authorization from the President shall be sufficient.

SECTION 4. Full Powers.—The issuance of Full Powers shall be made by the President of the Philippines who may delegate this function to the Secretary of Foreign Affairs.

The following persons, however, shall not require Full Powers prior to negotiating or signing a treaty or an executive agreement, or any amendment thereto, by virtue of the nature of their functions:

  1. Secretary of Foreign Affairs;

  2. Heads of Philippine diplomatic missions, for the purpose of adopting the text of a treaty or an agreement between the Philippines and the State to which they are accredited;

  3. Representatives accredited by the Philippines to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.

SECTION 5. Negotiations.—

  1. In cases involving negotiations of agreements, the composition of the Philippine panel or delegation shall be determined by the President upon the recommendation of the Secretary of Foreign Affairs and the lead agency if it is not the Department of Foreign Affairs.

  2. The lead agency in the negotiation of a treaty or an executive agreement, or any amendment thereto, shall convene a meeting of the panel members prior to the commencement of any negotiations for the purpose of establishing the parameters of the negotiating position of the panel. No deviation from the agreed parameters shall be made without prior consultations with the members of the negotiating panel.

SECTION 6. Entry into Force and Provisional Application of Treaties and Executive Agreements.—

  1. A treaty or an executive agreement enters into force upon compliance with the domestic requirements stated in this Order.

  2. No treaty or executive agreement shall be given provisional effect unless it is shown that a pressing national interest will be upheld thereby. The Department of Foreign Affairs, in consultation with the concerned agencies, shall determine whether a treaty or an executive agreement, or any amendment thereto, shall be given provisional effect.

SECTION 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement.—The domestic requirements for the entry into force of a treaty or an executive agreement, or any amendment thereto, shall be as follows:

  1. Executive Agreements.

    1. All executive agreements shall be transmitted to the Department of Foreign Affairs after their signing for the preparation of the ratification papers. The transmittal shall include the highlights of the agreements and the benefits which will accrue to the Philippines arising from them.

    2. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency, shall transmit the agreements to the President of the Philippines for his ratification. The original signed instrument of ratification shall then be returned to the Department of Foreign Affairs for appropriate action.

  2. Treaties.

    1. All treaties, regardless of their designation, shall comply with the requirements provided in sub-paragraph 1 and 2, item A (Executive Agreements) of this Section. In addition, the Department of Foreign Affairs shall submit the treaties to the Senate of the Philippines for concurrence in the ratification by the President. A certified true copy of the treaties, in such numbers as may be required by the Senate, together with a certified true copy of the ratification instrument, shall accompany the submission of the treaties to the Senate.

    2. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall comply with the provision of the treaties in effecting their entry into force.

SECTION 8. Notice to Concerned Agencies.—The Department of Foreign Affairs shall inform the concerned agencies of the entry into force of the agreement.

SECTION 9. Determination of the Nature of the Agreement.—The Department of Foreign Affairs shall determine whether an agreement is an executive agreement or a treaty.

SECTION 10. Separability Clause.—If, for any reason, any part or provision of this Order shall be held unconstitutional or invalid, other parts or provisions hereof which are not affected thereby shall continue to be in full force and effect.

SECTION 11. Repealing Clause.—All executive orders, proclamations, memorandum orders or memorandum circulars inconsistent herewith are hereby repealed or modified accordingly.

SECTION 12. Effectivity.—This Executive Order shall take effect immediately upon its approval.’[310]

Following the foregoing ratification and the Senate’s advise and concurrence of the Agreement, the Agreement on Privileges and Immunities of ASEAN does not require implementing legislation in the Philippines. Insofar as the Philippines is concerned, the Agreement has the binding force of law in its jurisdiction, and is a subject of mandatory judicial notice by Philippine courts.

  • Procedure for the appointment of the Philippine representative to the Intergovernmental Commission on Human Rights

The Philippine representative to the ASEAN Intergovernmental Commission on Human Rights is Ambassador Rosario Gonzalez Manalo. The appointment was made pursuant to the President’s appointment power, without need of legislative participation through the Commission on Appointments.

The 1987 Constitution broadly establishes the President’s power to appoint officials of the national government:

‘Article VII EXECUTIVE DEPARTMENT

Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess of Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.’

The above provision is almost a verbatim copy of its counterpart provision in the 1935 Constitution. It is intended, however, to permit Congress to dilute the President’s appointing power by sharing or relocating his or her authority.[311] Thus, under the 1987 Constitution, there are six categories of officials subject to the appointing power of the President:

Appointments subject to confirmation of the Commission on Appointments

  1. The heads of executive departments;[312]

  2. Ambassadors, other public ministers and consuls;

  3. Officers of the armed forces from the rank of colonel or naval captain; and

  4. Those other officers whose appointments are vested in the President by the Constitution. These include members of the Supreme Court (who are appointed by the President only upon recommendation by the Judicial and Bar Council);[313] members of the Judicial and Bar Council (the constitutional body tasked to recommend appointees to the Judiciary);[314] the members of Constitutional Commissions such as the Civil Service Commission,[315] the Commission on Elections,[316] and the Commission on Audit;[317] and the Ombudsman and his Deputies (also appointed by the President only upon recommendation by the Judicial and Bar Council).[318]

Appointments that do not require confirmation of the Commission on Appointments

  1. All other officers of the government whose appointments are not provided for by law; and

  2. Those whom the President may be authorized by law to appoint.[319]

Under the 1987 Constitution, therefore, there are effectively only two institutions that can limit the President’s power to appoint: Congress, through its twenty five-member Commission on Appointments,[320] and the seven-member Judicial and Bar Council.[321] In the last decade, however, both institutions have not been able to meaningfully counter-balance the President’s vast appointment power. When appointments subject to confirmation by the Commission on Appointments (CA) are not acted upon while Congress is in session, the President can keep renewing the appointment (or make what is known as an ad interim appointment, or a permanent appointment made while Congress is in recess) until the appointee qualifies into office through CA confirmation.[322] Likewise, the President can also issue an appointment ‘in an acting capacity’, a temporary appointment intended as a ‘stop-gap measure… to fill an office for a limited time until the appointment of a permanent occupant to the office.’[323]

Annex D

Relevant Texts

  • EXECUTIVE ORDER NO 459

Providing for the guidelines in the negotiation of INTERNATIONAL agreements and its ratification.

WHEREAS, the negotiations of international agreements are made in pursuance of the foreign policy of the country;

WHEREAS, Executive Order No 292, otherwise known as the Administrative Code of 1987, provides that the Department of Foreign Affairs shall be the lead agency that shall advise and assist the President in planning, organizing, directing, coordinating and evaluating the total national effort in the field of foreign relations;

WHEREAS, Executive Order No 292 further provides that the Department of Foreign Affairs shall negotiate treaties and other agreements pursuant to the instructions of the President, and in coordination with other government agencies;

WHEREAS, there is a need to establish guidelines to govern the negotiation and ratification of international agreements by the different agencies of the government;

NOW, THEREFORE, I, FIDEL V RAMOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby order:

SECTION 1. Declaration of Policy. It is hereby declared the policy of the State that the negotiations of all treaties and executive agreements, or any amendment thereto, shall be coordinated with, and made only with the participation of, the Department of Foreign Affairs in accordance with Executive Order No 292. It is also declared the policy of the State that the composition of any Philippine negotiation panel and the designation of the chairman thereof shall be made in coordination with the Department of Foreign Affairs.

SECTION 2. Definition of Terms.

  1. International agreement—shall refer to a contract or understanding, regardless of nomenclature, entered into between the Philippines and another government in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments.

  2. Treaties—international agreements entered into by the Philippines which require legislative concurrence after executive ratification. This term may include compacts like conventions, declarations, covenants and acts.

  3. Executive Agreements—similar to treaties except that they do not require legislative concurrence.

  4. Full Powers—authority granted by a Head of State or Government to a delegation head enabling the latter to bind his country to the commitments made in the negotiations to be pursued.

  5. National Interest—advantage or enhanced prestige or benefit to the country as defined by its political and/or administrative leadership.

  6. Provisional Effect—recognition by one or both sides of the negotiation process that an agreement be considered in force pending compliance with domestic requirements for the effectivity of the agreement.

SECTION 3. Authority to Negotiate. Prior to any international meeting or negotiation of a treaty or executive agreement, authorization must be secured by the lead agency from the President through the Secretary of Foreign Affairs. The request for authorization shall be in writing, proposing the composition of the Philippine delegation and recommending the range of positions to be taken by that delegation. In case of negotiations of agreements, changes of national policy or those involving international arrangements of a permanent character entered into in the name of the Government of the Republic of the Philippines, the authorization shall be in the form of Full Powers and formal instructions. In cases of other agreements, a written authorization from the President shall be sufficient.

SECTION 4. Full Powers. The issuance of Full Powers shall be made by the President of the Philippines who may delegate this function to the Secretary of Foreign Affairs.

The following persons, however, shall not require Full Powers prior to negotiating or signing a treaty or an executive agreement, or any amendment thereto, by virtue of the nature of their functions:

  1. Secretary of Foreign Affairs;

  2. Heads of Philippine diplomatic missions, for the purpose of adopting the text of a treaty or an agreement between the Philippines and the State to which they are accredited;

  3. Representatives accredited by the Philippines to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.

SECTION 5. Negotiations.

  1. In cases involving negotiations of agreements, the composition of the Philippine panel or delegation shall be determined by the President upon the recommendation of the Secretary of Foreign Affairs and the lead agency if it is not the Department of Foreign Affairs.

  2. The lead agency in the negotiation of a treaty or an executive agreement, or any amendment thereto, shall convene a meeting of the panel members prior to the commencement of any negotiations for the purpose of establishing the parameters of the negotiating position of the panel. No deviation from the agreed parameters shall be made without prior consultations with the members of the negotiating panel.

SECTION 6. Entry into Force and Provisional Application of Treaties and Executive Agreements.

  1. A treaty or an executive agreement enters into force upon compliance with the domestic requirements stated in this Order.

  2. No treaty or executive agreement shall be given provisional effect unless it is shown that a pressing national interest will be upheld thereby. The Department of Foreign Affairs, in consultation with the concerned agencies, shall determine whether a treaty or an executive agreement, or any amendment thereto, shall be given provisional effect.

SECTION 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement. The domestic requirements for the entry into force of a treaty or an executive agreement, or any amendment thereto, shall be as follows:

  1. Executive Agreements.

    1. All executive agreements shall be transmitted to the Department of Foreign Affairs after their signing for the preparation of the ratification papers. The transmittal shall include the highlights of the agreements and the benefits which will accrue to the Philippines arising from them.

    2. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency, shall transmit the agreements to the President of the Philippines for his ratification. The original signed instrument of ratification shall then be returned to the Department of Foreign Affairs for appropriate action.

  2. Treaties.

    1. All treaties, regardless of their designation, shall comply with the requirements provided in sub-paragraph 1 and 2, item A (Executive Agreements) of this Section. In addition, the Department of Foreign Affairs shall submit the treaties to the Senate of the Philippines for concurrence in the ratification by the President. A certified true copy of the treaties, in such numbers as may be required by the Senate, together with a certified true copy of the ratification instrument, shall accompany the submission of the treaties to the Senate.

    2. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall comply with the provision of the treaties in effecting their entry into force.

SECTION 8. Notice to Concerned Agencies. The Department of Foreign Affairs shall inform the concerned agencies of the entry into force of the agreement.

SECTION 9. Determination of the Nature of the Agreement. The Department of Foreign Affairs shall determine whether an agreement is an executive agreement or a treaty.

SECTION 10. Separability Clause. If, for any reason, any part or provision of this Order shall be held unconstitutional or invalid, other parts or provisions hereof which are not affected thereby shall continue to be in full force and effect.

SECTION 11. Repealing Clause. All executive orders, proclamations, memorandum orders or memorandum circulars inconsistent herewith are hereby repealed or modified accordingly.

SECTION 12. Effectivity. This Executive Order shall take effect immediately upon its approval.

DONE in the City of Manila, this 25th day of November, in the year of Our Lord, Nineteen Hundred and Ninety-Seven.

Comparative table between Philippine constitutional rights and international instruments

  • Organizational Chart of the Department of Foreign Affairs

Bill of Rights (Article III) Comparative International Legal Norms and Instruments, Applicable State Policy under the 1987 Constitution, Philippine practice
Sec 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. ICCPR, Arts 5(1), 9(1), 26

UDHR, Arts 3, 7

CONST, Art II, Sec 11 (The State values the dignity of every human person and guarantees full respect for human rights.)

Draft Declaration on Rights and Duties of States, Article 6, 375, 378, 596 UNCTAD Res 45 (III), 3082, 6 December 1949; Vienna Declaration and Programme of Action (Adopted by the World Conference on Human Rights in Vienna, 25 June 1993); United Nations Millenium Declaration, GA Res 55/2, 8 September 2000; Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, 9 December 1998; UN Human Rights Committee General Comment No 6: Article 6 (Right to Life), HRI/GEN/1/Rev 8, pp 166–167; UN Human Rights Committee General Comment No 8: Article 9 (Right to liberty and security of persons), HRI/GEN/1/Rev 8, p 169; UN Committee on Economic, Social and Cultural Rights Fifth Session General Comment No 3: The nature of States parties’ obligations (art 2, para 1 of the Covenant), HRI/GEN/1Rev8, pp 15–18.
Sec 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. ICCPR, Arts 9(1) to 9(5)

UDHR, Arts 3, 12

CONST, Art II, Sec 11 (The State values the dignity of every human person and guarantees full respect for human rights.)

Draft Declaration on Rights and Duties of States, Article 6, 375, 378, 596 UNCTAD Res 45 (III), 3082, 6 December 1949; Vienna Declaration and Programme of Action (Adopted by the World Conference on Human Rights in Vienna, 25 June 1993); United Nations Millenium Declaration, GA Res 55/2, 8 September 2000; Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, 9 December 1998; UN Human Rights Committee General Comment No 8: Article 9 (Right to liberty and security of persons), HRI/GEN/1/Rev 8, p 169.
Sec 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.		 ICCPR, Arts 17(1) and 17(2)

UDHR, Art 12

CONST, Art II, Sec 11 (The State values the dignity of every human person and guarantees full respect for human rights.)

Draft Declaration on Rights and Duties of States, Article 6, 375, 378, 596 UNCTAD Res 45 (III), 3082, 6 December 1949; Vienna Declaration and Programme of Action (Adopted by the World Conference on Human Rights in Vienna, 25 June 1993); United Nations Millenium Declaration, GA Res 55/2, 8 September 2000; Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, 9 December 1998; UN Human Rights Committee General Comment No 8: Article 9 (Right to liberty and security of persons), HRI/GEN/1/Rev 8, p 169; UN Human Rights Committee Thirty-second session (1988) General Comment No 16: Article 16 (Right to privacy), HRI/GEN/1/Rev 8, pp 181–183.
Sec 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. ICCPR, Arts 19(1) to 19(3), 21, 22(1)

UDHR, Arts 19, 20(1), 21(1)

CONST, Art II, Sec 11 (The State values the dignity of every human person and guarantees full respect for human rights.)

Draft Declaration on Rights and Duties of States, Article 6, 375, 378, 596 UNCTAD Res 45 (III), 3082, 6 December 1949; Vienna Declaration and Programme of Action (Adopted by the World Conference on Human Rights in Vienna, 25 June 1993); United Nations Millenium Declaration, GA Res 55/2, 8 September 2000; Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, 9 December 1998; UN Human Rights Committee Nineteenth Session (1983), General Comment No 10: Article 19 (Freedom of opinion), HRI/GEN/1/Rev 8, pp 171–172.
Sec 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 and political rights. ICCPR, Arts 18(1) to 18(3)

UDHR, Art 18

CONST, Art II, Sec 6 (The separation of Church and State shall be inviolable.)

Draft Declaration on Rights and Duties of States, Article 6, 375, 378, 596 UNCTAD Res 45 (III), 3082, 6 December 1949; Vienna Declaration and Programme of Action (Adopted by the World Conference on Human Rights in Vienna, 25 June 1993); United Nations Millenium Declaration, GA Res 55/2, 8 September 2000; Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, 9 December 1998; UN Human Rights Committee Forty-eighth session (1993), General Comment No 22: Article 18 (Freedom of thought, conscience, or religion), HRI/GEN/1/Rev 8, pp 194–197.
Sec 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. ICCPR, Arts 12(1) to 12(4)

UDHR, Art 13(1) and 13(2)

CONST, Art II, Sec 11 (The State values the dignity of every human person and guarantees full respect for human rights.)

Draft Declaration on Rights and Duties of States, Article 6, 375, 378, 596 UNCTAD Res 45 (III), 3082, 6 December 1949; Vienna Declaration and Programme of Action (Adopted by the World Conference on Human Rights in Vienna, 25 June 1993); United Nations Millenium Declaration, GA Res 55/2, 8 September 2000; Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, 9 December 1998; UN Human Rights Committee Sixty-seventh session (1999), General Comment No 27: Article 12 (Freedom of movement), HRI/GEN/1/Rev 8, pp 213–218.
Sec 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. ICCPR, Art 19(2), 25(c)

UDHR, Arts 19, 21(2)

CONST, Art II, Sec 24 (The State recognizes the vital role of communication and information in nation-building.)

CONST, Art II, Sec 28 (Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.)

Draft Declaration on Rights and Duties of States, Article 6, 375, 378, 596 UNCTAD Res 45 (III), 3082, 6 December 1949; Vienna Declaration and Programme of Action (Adopted by the World Conference on Human Rights in Vienna, 25 June 1993); United Nations Millenium Declaration, GA Res 55/2, 8 September 2000; Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, 9 December 1998; UN Human Rights Committee Fifty-seventh session (1996) General Comment No 25: Article 25 (Participation in public affairs and the right to vote), HRI/GEN/1/Rev 8, pp 207–212.
Sec 8. 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. ICCPR, Arts 22(1) to 22(3)

UDHR, Arts 20, 23(4)

ICESCR, Arts 8(1) to 8(3)

CONST, Art II, Sec 18 (The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.)

CONST, Art II, Sec 23 (The State shall encourage non-governmental, community-based, or sectoral organizations that promote the welfare of the nation.)

Draft Declaration on Rights and Duties of States, Article 6, 375, 378, 596 UNCTAD Res 45 (III), 3082, 6 December 1949; Vienna Declaration and Programme of Action (Adopted by the World Conference on Human Rights in Vienna, 25 June 1993); United Nations Millenium Declaration, GA Res 55/2, 8 September 2000; Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, 9 December 1998; Freedom of Association and Protection of the Right to Organize Convention, 1948 (No 87), adopted on 9 July 1948 by the General Conference of the International Labour Organization at its thirty-first session; Right to Organize and Collective Bargaining Convention, 1949 (No 98), adopted on 1 July 1949 by the General Conference of the International Labour Organization at its thirty-second session.
Sec 9. Private property shall not be taken for public use without just compensation. UDHR, Arts 17(1) and 17(2)

CONST, Art II, Sec 5 (The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.)

Draft Declaration on Rights and Duties of States, Article 6, 375, 378, 596 UNCTAD Res 45 (III), 3082, 6 December 1949; Vienna Declaration and Programme of Action (Adopted by the World Conference on Human Rights in Vienna, 25 June 1993); United Nations Millenium Declaration, GA Res 55/2, 8 September 2000; Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, 9 December 1998; UN Human Rights Committee on Economic, Social, and Cultural Rights Nineteenth Session (1998) General Comment No 10: The role of national human rights institutions in the protection of economic, social, and cultural rights, HRI/GEN/1/Rev 8, pp 59–60.
Sec10. No law impairing the obligation of contracts shall be passed. General principle of international lawa on freedom of contract (see UNIDROIT 2004 Principles of International Commercial Contracts, Art 1.1, which codifies the norm considering various municipal laws throughout the worldb)

CONST, Art II, Sec 5 (The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.)

*Noted constitutionalist Fr Joaquin Bernas refers to various jurisprudence from the United States to show the transplantation of the norm to the Philippines.c
Sec 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. On the right to an effective remedy:

ICCPR, Arts 2(3), 25(c)

UDHR, Arts 8, 21(2)

CERD, Art 6

CEDAW, Art 2(c)

CAT, Art 14

CONST, Art II, Sec 9 (The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.)

CONST, Art II, Sec 10 (The State shall promote social justice in all phases of national development.)

Draft Declaration on Rights and Duties of States, Article 6, 375, 378, 596 UNCTAD Res 45 (III), 3082, 6 December 1949; Vienna Declaration and Programme of Action (Adopted by the World Conference on Human Rights in Vienna, 25 June 1993); United Nations Millenium Declaration, GA Res 55/2, 8 September 2000; Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, 9 December 1998; UN Committee on Economic, Social, and Cultural Rights Nineteenth Session (1998), General Comment No 10: The Role of National Human Rights Institutions in the protection of economic, social, and cultural rights, HRI/GEN/1/Rev8, pp 59–60.
Sec 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) 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 unjustified.		 ICCPR, Arts 9(2), 9(3), 14(1), 14(2), 14(3)(a) to 14(3)(g)

UDHR, Arts 9, 10, 11(1), 11(2)

CONST, Art II, Sec 11 (The State values the dignity of every human person and guarantees full respect for human rights.)

Draft Declaration on Rights and Duties of States, Article 6, 375, 378, 596 UNCTAD Res 45 (III), 3082, 6 December 1949; Vienna Declaration and Programme of Action (Adopted by the World Conference on Human Rights in Vienna, 25 June 1993); United Nations Millenium Declaration, GA Res 55/2, 8 September 2000; Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, 9 December 1998; UN Human Rights Committee Twenty-first session (1984), General Comment No 13: Article 14 (Administration of Justice), pp 174–178.
Sec 15. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it. ICCPR, Art 4(1) to 4(3)

CONST, Art II, Sec 11 (The State values the dignity of every human person and guarantees full respect for human rights.)

Draft Declaration on Rights and Duties of States, Article 6, 375, 378, 596 UNCTAD Res 45 (III), 3082, 6 December 1949; Vienna Declaration and Programme of Action (Adopted by the World Conference on Human Rights in Vienna, 25 June 1993); United Nations Millenium Declaration, GA Res 55/2, 8 September 2000; Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, 9 December 1998; UN Human Rights Committee Seventy-second session (2001), General Comment No 29: Article 4: Derogations during a state of emergency, HRI/GEN/1/Rev 8, p 225.
Sec 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. ICCPR, Arts 9(4), 14(1), 14(3)

CONST, Art II, Sec 11 (The State values the dignity of every human person and guarantees full respect for human rights.)

CONST, Art II, Sec 9 (The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.)

Draft Declaration on Rights and Duties of States, Article 6, 375, 378, 596 UNCTAD Res 45 (III), 3082, 6 December 1949; Vienna Declaration and Programme of Action (Adopted by the World Conference on Human Rights in Vienna, 25 June 1993); United Nations Millenium Declaration, GA Res 55/2, 8 September 2000; Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, 9 December 1998; UN Human Rights Committee Sixteenth Session (1982), General Comment No 8: Article 9 (Right to liberty and security of persons), HRI/GEN/1/Rev 8, p 169.
Sec 17. No person shall be a witness against himself. ICCPR, Art 14(3)(g)

CONST, Art II, Sec 11 (The State values the dignity of every human person and guarantees full respect for human rights.)

Draft Declaration on Rights and Duties of States, Article 6, 375, 378, 596 UNCTAD Res 45 (III), 3082, 6 December 1949; Vienna Declaration and Programme of Action (Adopted by the World Conference on Human Rights in Vienna, 25 June 1993); United Nations Millenium Declaration, GA Res 55/2, 8 September 2000; Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, 9 December 1998; UN Human Rights Committee Twenty-first session (1984), General Comment No 13: Article 14 (Administration of Justice), par 14.
Sec 18. (1) No person shall be detained solely by reason of his political beliefs and aspirations.

(2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.		 ICCPR, Arts 8(1), 8(2), 8(3), 9(1), 18(1), 18(2), 19(1), 19(2), 19(3)

UDHR, Arts 4, 9, 18, 19

CONST, Art II, Sec 11 (The State values the dignity of every human person and guarantees full respect for human rights.)

Draft Declaration on Rights and Duties of States, Article 6, 375, 378, 596 UNCTAD Res 45 (III), 3082, 6 December 1949; Vienna Declaration and Programme of Action (Adopted by the World Conference on Human Rights in Vienna, 25 June 1993); United Nations Millenium Declaration, GA Res 55/2, 8 September 2000; Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, 9 December 1998; Standard Minimum Rules for the Treatment of Prisoners, adopted by the First UN Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, approved by the Economic and Social Council in Resolution Nos 663 C (XXIV), 31 July 1957, and 2076 (LXII), 13 May 1977; UN Human Rights Committee Nineteenth Session (1983), General Comment No 10: Article 19 (Freedom of Opinion), HRI/GEN/1/Rev 8, pp 171–172; UN Human Rights Committee Forty-eighth Session (1993), General Comment No 22: Article 18 (Freedom of thought, conscience or religion), HRI/GEN/1/Rev 8, pp 194-197
Sec 19. (1) Excessive fines shall not be imposed, nor cruel, degrading, or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua.

(2) The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.		 ICCPR, Arts 6(2), 7, 10(1), 10(2)

UDHR, Arts 3, 5

Common Article 3 to the 1949 Geneva Conventions

CONST, Art II, Sec 11 (The State values the dignity of every human person and guarantees full respect for human rights.)

Draft Declaration on Rights and Duties of States, Article 6, 375, 378, 596 UNCTAD Res 45 (III), 3082, 6 December 1949; Vienna Declaration and Programme of Action (Adopted by the World Conference on Human Rights in Vienna, 25 June 1993); United Nations Millenium Declaration, GA Res 55/2, 8 September 2000; Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, 9 December 1998; Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res 3452 (XXX), 9 December 1975; Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res 37/194, 18 December 1982; Safeguards guaranteeing the protection of the rights of those facing the death penalty, Economic and Social Council Resolution 1984/50, 25 May 1984; United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’), GA Res 40/33, 29 November 1985.
Sec 20. No person shall be imprisoned for debt or non-payment of a poll tax. ICCPR, Art 11

CONST, Art II, Sec 11 (The State values the dignity of every human person and guarantees full respect for human rights.)

Draft Declaration on Rights and Duties of States, Article 6, 375, 378, 596 UNCTAD Res 45 (III), 3082, 6 December 1949; Vienna Declaration and Programme of Action (Adopted by the World Conference on Human Rights in Vienna, 25 June 1993); United Nations Millenium Declaration, GA Res 55/2, 8 September 2000; Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, 9 December 1998.
Sec 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. ICCPR, Art 14(7)

CONST, Art II, Sec 11 (The State values the dignity of every human person and guarantees full respect for human rights.)

Draft Declaration on Rights and Duties of States, Article 6, 375, 378, 596 UNCTAD Res 45 (III), 3082, 6 December 1949; Vienna Declaration and Programme of Action (Adopted by the World Conference on Human Rights in Vienna, 25 June 1993); United Nations Millenium Declaration, GA Res 55/2, 8 September 2000; Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, 9 December 1998; UN Human Rights Committee Twenty-first session (1984), General Comment No 13: Article 14 (Administration of Justice), HRI/GEN/1/Rev 8, para 19.
Sec 22. No ex post facto law or bill of attainder shall be enacted. ICCPR, Arts 14(5), 14(6), 15(1)

UDHR, Art 11(2)

CONST, Art II, Sec 11 (The State values the dignity of every human person and guarantees full respect for human rights.)

Draft Declaration on Rights and Duties of States, Article 6, 375, 378, 596 UNCTAD Res 45 (III), 3082, 6 December 1949; Vienna Declaration and Programme of Action (Adopted by the World Conference on Human Rights in Vienna, 25 June 1993); United Nations Millenium Declaration, GA Res 55/2, 8 September 2000; Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, 9 December 1998.

  1. aSee BIN CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS, (1953 ed, Steven & Sons Ltd, London) at 43–45. bSee JEAN PAUL BERAUDO, et al, UNIDROIT PRINCIPLES FOR INTERNATIONAL COMMERCIAL CONTRACTS: A NEW LEX MERCATORIA? (1995 ed, International Chamber of Commerce). cSee JOAQUIN G BERNAS, SJ, A HISTORICAL AND JURIDICAL STUDY OF THE PHILIPPINE BILL OF RIGHTS, (1971 ed, Ateneo University Press), pp 91–106.
Published Online: 2022-02-28
Published in Print: 2022-03-28

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Articles in the same Issue

  1. Frontmatter
  2. Articles
  3. Balancing Competences and the Margin of Appreciation: Structuring Deference at the ECtHR
  4. Treaties in the Philippine Constitutional System
  5. Notes and Essays
  6. Schoolchildren’s Right to Education and Freedom of Religion in the Case Law of the ECtHR: Comments on Papageorgiou v Greece
  7. Convicted Individuals as a Group Stigmatised by the State in the Case Law of the Constitutional Court of the Republic of Latvia
  8. Book Review
  9. Democratic Commitment as Marker of Successful Constitution-Making: Donald L Horowitz, Constitutional Processes and Democratic Commitment (Yale University Press 2021)
https://doi.org/10.1515/icl-2021-0035
Keywords for this article
Philippines legal culture and history; accountability; human rights; 1987 Philippine constitution; treaties; international law in constitutional settings

Articles in the same Issue

  1. Frontmatter
  2. Articles
  3. Balancing Competences and the Margin of Appreciation: Structuring Deference at the ECtHR
  4. Treaties in the Philippine Constitutional System
  5. Notes and Essays
  6. Schoolchildren’s Right to Education and Freedom of Religion in the Case Law of the ECtHR: Comments on Papageorgiou v Greece
  7. Convicted Individuals as a Group Stigmatised by the State in the Case Law of the Constitutional Court of the Republic of Latvia
  8. Book Review
  9. Democratic Commitment as Marker of Successful Constitution-Making: Donald L Horowitz, Constitutional Processes and Democratic Commitment (Yale University Press 2021)
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