THERAPEUTIC MODALITY - CA 322

LAWS ON HUMAN RIGHTS

Learning Objectives:

 Gain some knowledge about the general nature and definition of human rights.
 Acquaint on the sources and foundations of human rights law.
 Understand the meaning and concept of civil and political rights.

WHY HUMAN RIGHTS ARE IMPORTANT?

• All humans are born equal.

• Nobody should be treated like a slave.
• Nobody has the right to torture you.
• The law is the same for everyone.
• You can ask for legal help when the rights your country grants you are not respected.
• Nobody has the right to imprison you without legal reason.
• You are innocent until proven guilty, have the right to defend yourself, and cannot be
punished for someone else’s crime.
• You have the right to come and go as you wish within your country.
• If someone hurts you, you can go to another country and ask for protection, unless
you’ve killed someone.
• You have the right to belong to a country.
• You have the right to profess your religion freely.
• You can think what you want and say what you like.
• Everyone has the right to work, choose the type of work they do, and get paid fairly.
• Everyone has the right to go to school and primary school should be free.
• Everyone is entitled to take part in political affairs and everyone gets a vote.

Definition of HUMAN RIGHTS

 Those rights which are inherent in our nature and without which, we cannot live as human
beings. It allows us to develop and use our human qualities, intelligence, talents and
conscience and to satisfy our spiritual and others needs. Supreme, inherent and inalienable
rights to life, dignity and self-development. The essence of these rights makes man human.
 Human rights are rights we have simply because we exist as human beings - they are not
granted by any state. These universal rights are inherent to us all, regardless of nationality,
sex, national or ethnic origin, color, religion, language, or any other status. They range from
the most fundamental - the right to life - to those that make life worth living, such as the
rights to food, education, work, health, and liberty- United Nation Human Rights.
 Human rights are the basic rights and freedoms that belong to every person in the world, from
birth until death -Universal Declaration of Human Rights.

BASIC CHARACTERISTICS OF HUMAN RIGHTS

1. INHERENT – Not granted by any person or authority.

2. FUNDAMENTAL - without them, the life and dignity of man will be meaningless.
3. INALIENABLE - cannot be rightfully taken away from a free individual. Cannot be given away or
be forfeited.
4. IMPRESCRIPTIBLE- cannot be lost even if man fails to use or assert them, even by a long
passage of time.
 5. INDIVISIBLE-Not capable of being divided. Cannot be denied even when other rights have
already been enjoyed.
6. UNIVERSAL- It applies irrespective of one's origin, status, or condition or place where one
lives. Rights can be enforced without national border.
7. INTERDEPENDENT- The fulfillment or exercise of one cannot be had without the realization of
the other.

Types of Human Rights

Individual (Civil) rights

 Life, liberty, and security of the person; privacy and freedom of movement; ownership of property;
freedom of thought, conscience, and religious belief and practice; prohibition of slavery, torture, and
cruel or degrading punishment.

Rule of law

 Equal recognition before the law and equal protection of the law; effective legal remedy for violation
of rights; impartial hearing and trial; presumption of innocence; and prohibition of arbitrary arrest (the
violation of the right to liberty).

Rights of political expression

 Freedom of expression, assembly, and association; the right to take part in government; and periodic
and meaningful elections with universal and equal suffrage.

Economic and social rights

 An adequate standard of living; free choice of employment; protection against unemployment; "just
and favorable remuneration"; the right to form and join trade unions; "reasonable limitation of
working hours"; free elementary education; social security; and the "highest attainable standard of
physical and mental health."

Rights of communities

 self-determination and protection of minority cultures.

The concept of communities encompasses a broad range of groupings including minorities, rural
communities and other kinds of groups. Although “community rights” is not a defined concept in international
law, community members are entitled to the full range of human rights. Moreover, given the social, economic
and political structures and cohesion of communities, there may often be a collective aspect to their rights. In
this regard, there may be commonalities between community rights and indigenous peoples’ rights, especially
when projects impact lands and resources that concern entire communities rather than individuals.

HUMAN RIGHTS PRINCIPLE

The dignity of man and human life is inviolable. From the dignity of man is derived the right of every
person to free development of his personality. A legitimate state should exist to assure that in the
discharge of the governmental functions, the dignity that is the birthright of every human being is
duly safeguard.

Classification of Rights:

1. Natural Rights God-given rights, acknowledged by everybody to be morally good. Unwritten, but
prevail as norms of the society.

2. Constitutional Rights -Conferred and protected by the constitution and which cannot be modified
or taken away by the law-making body.

3. Statutory Rights- Those rights which are provided by law promulgated by the law-making body.
May be abolished by the body that created them.
A statutory right is one that is written into law by a statute. Typically, such a right is made by a state
legislature and if not written into the law probably would not exist. If the legislature decides they
should create a law granting a special right to certain people for example that would be done by
writing a statute. A common example is an ordinance that would be limiting you to use of a particular
beach area to only people residing in the area.

Stages of Human Rights

(1) Idealization - Notions about human rights start in the realm of ideas that reflect a
consciousness against oppression or inadequate performance of the State.

(2) Positivization - Where the support for the ideas become strong, and thus incorporate them
into legal instruments.

(3) Realization - When these rights are already being enjoyed by the citizens by the
transformation of the social, economic, and political order.

Three obligations of State Parties

(1) Obligation to respect - means that States must refrain from interfering with or curtailing the
enjoyment of human rights.

 Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) contain this
obligation
 Indicates that the negative character of civil and political rights, commanding the State to
refrain from restricting the exercise of these rights is not expressly allowed.

(2) Obligation to ensure and protect- requires States to protect individuals and groups against
human rights abuses.

Art 2. 1 (a) To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has been
committed by persons acting in an official capacity;
 Art 2.1(b) To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by any other
competent authority provided for by the legal system of the State, and to develop the
possibilities of judicial remedy;

Art 2.1 (c) To ensure that the competent authorities shall enforce such remedies when
granted.

(3) Obligation to fulfill – that States must take positive action to facilitate the enjoyment of basic
human rights.
 to prevent private individuals, groups, or entities from interfering with the individual's
civil and political rights.
Examples:
1. Creating and approving legislation that promotes and protects economic, social, and cultural
rights.
2. Allocating all the necessary resources for the achievement of Economic Social Cultural Rights.
This can be done by giving priority to ESCR when planning national budgets.
3. Working with the private sector and civil society to devise strategies on how to tackle social
problems such as illiteracy, crime, and HIV/AIDS.
4. Providing citizens with the proper means to complain and obtain remedies in cases of the
violation of their rights.
5. Providing direct subsidies or assistance when the poor are not able to obtain essential services
or goods at market prices.
6. Reducing or ending child mortality, hunger, or other sorts of violations

SOURCES AND FOUNDATIONS OF HUMAN RIGHTS LAW

The 1987 Constitution - The Constitution itself is a source, and not only the Bill of Rights.
 The 1987 Constitution is the basic source of human right
law in the Philippines.
 As early as Biak na Bato, our forefathers are conscious about the rights of human beings.
 A novel feature of the 1987 Constitution is the independent constitutional office of the
Commission of Human Rights, the first national human rights commission in the world.
 The CHR is not a regular commission, not like the CoA or the Civil Service, etc. It is an
independent commission which investigates on human rights violations and establishes
programs of education and information to enhance respect for the primacy of human rights.
 This Constitution is sometimes called as "Human Rights Constitution".
 The 1987 Constitution is the seventh Constitution drafted by Filipinos.

Universal Declaration of Human Rights (UDHR)

 The Commission on Human Rights of the United Nations drafted the UDHR, while the United
Nations passed it.
 The chairwoman was former first lady Eleanor Roosevelt.
 The declaration was adopted by 48 votes in favor, none against and eight abstentions.
 Carlos Romulo was also there during the drafting of the CHR of the UN.
 The Preamble to the UDHR refers to the concepts of inherent human dignity and one
inalienable nature of human rights It also called for inter-cultural consensus by indicating that
a common understanding of the rights and freedoms is to achieve promotion of universal
respect for and observance of human rights and fundamental freedoms.
 The UDHR is the first internationally adopted catalogue of human rights.
 Mary Robinson, former High Commissioner for Human Rights, said that the common language
of humanity, the language of human rights, is enshrined in the UDHR.

International Covenant on Civil and Political Rights (ICCPR)

  Adopted unanimously by 106 States and entered into force in 1976.
 International Covenant on Civil and Political Rights (ICCPR) -Adopted and opened for
signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16
December 1966 entry into force 23 March 1976, in accordance with Article 49.

 An act providing for reparation and recognition of victims of Human Rights violations during
the Marcos regime, documentation of said violations, appropriating funds therefor and for
other purposes
 International Bill of Rights - U Thant, former Secretary General of the UN called the three (3)
documents and the Optional Protocol to the Covenant on Civil and Political Rights as "Magna
Carta for mankind" and is "the essential prerequisite for peace at home and in the world".

International Covenant on Civil and Political Rights

 Ratified in the Philippines in October 23, 1986

 The ICESCR (International Covenant on Economic, Social and Cultural Rights) in on June, 7,
1974;
 The CEDAW (Convention on the elimination of all forms of discrimination against women) in
August 5, 1981;
 CRC (Convention of the rights of the Child) in August 21, 1990,
 CERD (Convention on the Elimination of Racial Discrimination) on September 15, 1967,
 International Convention on the Protection of the Rights of All Migrant Workers and Members
of Their Families, July 5, 1995.
 The Philippines also acceded to the CAT (Convention against Torture and other cruel, inhuman
or degrading treatment or punishment) in June 18, 1986.
 In accordance with Article 40 of the ICCPR, the Philippines submitted to the United Nations
Human Rights Committee (HRC) the combined Second and Third State Reports of the
Philippines' Implementation of the ICCPR. The last time that the Philippines had been
examined by the Human Rights Committee was in 1989.
 REPUBLIC ACT NO. 10368 known as “HUMAN RIGHTS VICTIMS REPARATION AND
RECOGNTION ACT OF 2013”

CIVIL AND POLITICAL RIGHTS

Bill of Rights in the 1987 Constitution-

 The Bill of Rights is a regular fixture in all Philippine Constitutions except in the Biak na Bato
Constitution of 1897.
 1935 Constitution, 1973 Constitution, 1986 Freedom Constitution – Bill of Rights
 1943 Constitution – Duties and Rights of the Citizens.
 1899 Malolos Constitution – the Filipinos and their National and Individual Rights

Bill of Rights – An enumeration of civil and political rights that are self-executing. It also serves as
restriction upon the powers of the State in order to preserve constitutional harmony and stability.

 Father Joaquin Bernas, SJ. –the Bill of Rights is to declare some forbidden zones in the
private inaccessible to any power holder.

The provisions in the Bill of Rights can be classified into four (4) types

(1) The completely new provisions.

 Section 12(4), 18(1), 19(2)
(2) The old provisions that contain amendments by addition,
 Section 4, 6, 7, 11, 12(1), 12(2), 12(3), 13, 19(1) (3) The old provisions where words and
phrases were amended by deletion.
  Section 2, 15
(3) The old provisions that remained intact.
 Section 1, 3(1), 5, 9, 10, 20, 21, 2

Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law - this
is the fruit of the negotiations of the government and the rebels.

 The first substantive agreement signed by the Negotiating Panels of the Government of the
Philippines in The Hague, Netherlands.
 This comprehensive agreement consists of seven (7) parts:
 The Preamble - introduces the Agreement and articulates the reasons for and the intention
of the parties.
 Declaration of Principles
 Bases, Scope, and Applicability
 Respect for Human Rights
 Respect for International Humanitarian Law
 Joint Monitoring Committee

RIGHTS OF A PERSON UNDER CUSTODIAL INVESTIGATION

Custodial Rights of a Person

Section 12, Article III of the 1987 Constitution

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) 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.

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

Custodial Investigation
 is any questioning by law enforcement after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.
 It refers to the investigation conducted by law enforcement immediately after arrest for the
commission of an offense. It begins when a person has been arrested and brought to the
custody of law enforcers in which suspicion is focused on him in particular and questions are
asked from him (the suspect) to elicit admissions or information on the commission of an
offense.

What is the Miranda Doctrine?

 The Miranda Doctrine means that prior to questioning during custodial investigation, the
person must be warned that he has the right to remain silent, that any statement he gives
may be used as evidence against him, and that he has the right to the presence of an attorney,
either retained or appointed.
The name comes from the U.S. case, Miranda Vs. Arizona Write to 16 L. Ed 2d 694, in which the US
Supreme Court laid down the principle of custodial rights of an accused. It held, thus;

"Our holding will be spelled out with some specificity in the pages which follow, but, briefly stated, it
is this: the prosecution may n use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination. By custodial investigation, we mean
questioning initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards
to be employed, unless other fully effective means are devised to inform accused persons of their right
of silence and to assure a continuous opportunity to exercise it, the following measures are required:
Prior to any questioning, the person must be warned that he has the right to remain silent, that any
statement he does make may be used as evidence against him, and that he has a right to the
presence of an attomey, either retained or appointed. The defendant may waive effectuation of these
rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates
in any manner and at any stage of the process that he wishes to consult with an attorney before
speaking, there can be no questioning. Likewise, t the individual is alone and indicates in any manner
that he does not wish to be interrogated, the police may not question him. The mere fact that he may
have answered some questions or volunteered some statements on his own does not deprive him of
the right to refrain from answering any further inquiries until he has consulted with an attorney and
thereafter consents to be questioned."

What are the rights of a person during custodial investigation?

The right to be informed of his rights

 i.e. the reading of the Miranda Doctrine or custodial rights by police during his arrest. This
carries the correlative obligation on the part of the investigator to explain and contemplates
effective communication which results in the subject understanding what is conveyed.

The right to remain silent and to be reminded that anything he says can and will be used against him

 This refers not only to verbal confessions but also to acts. However, mechanical acts that does
not require the use of intelligence (such as providing DNA samples) or to answers to general
questions are not protected under this right.

The right to an attorney or to counsel, preferably of his own choice; if not, one will be provided for him

 This right is absolute and applies even if the accused himself is a lawyer. The right is more
particularly the right to independent and competent. An independent counsel is one not
hampered with any conflicts of interest, and a competent counsel is one who is vigilant in
protecting the rights of an accused.

Right against torture, force, violence, threat, intimidation or any other means which vitiate the free
will of the person

Right against secret detention places, solitary, incommunicado, or other similar forms of detention

 Any confession or admission obtained from the person arrested in violation of these rights are
inadmissible in evidence and cannot be used against said person. This is called the
Exclusionary Rule, i.e. it is excluded from the evidence to be considered by the court during
trial. Such confession or admission is tainted and must be suppressed under the "Fruit of the
Poisonous Tree" Doctrine (evidence seized in an illegal arrest, search or interrogation).

Question: Can a case be dismissed if a person is not read his/her Miranda rights?
  Answer: Yes, but only if the police have insufficient evidence without the admissions made. And, in
most instances as it relates to non-custodial interrogation—meaning the person has not actually been
arrested for a crime yet—the reason they’re questioning the person is they don’t have enough
information in order to otherwise prosecute. If they did have enough information, they’d have no need
to, nor would they bother with, the investigation. That’s why in almost every instance, it’s best for a
person who is being asked to come into the station for a non-custodial interrogation to decline.

Republic Act No. 7438

April 27, 1992

AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL

INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING
OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

Section 1. Statement of Policy. – It is the policy of the Senate to value the dignity of every human
being and guarantee full respect for human rights.

Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public
Officers. –

(a) Any person arrested detained or under custodial investigation shall at all times be assisted by
counsel.

(b) Any public officer or employee, or anyone acting under his order or his place, who arrests, detains
or investigates any person for the commission of an offense shall inform the latter, in a language
known to and understood by him, of his rights to remain silent and to have competent and
independent counsel, preferably of his own choice, who shall at all times be allowed to confer
privately with the person arrested, detained or under custodial investigation. If such person cannot
afford the services of his own counsel, he must be provided with a competent and independent
counsel by the investigating officer.

(c) The custodial investigation report shall be reduced to writing by the investigating officer, provided
that before such report is signed, or thumb marked if the person arrested or detained does not know
how to read and write, it shall be read and adequately explained to him by his counsel or by the
assisting counsel provided by the investigating officer in the language or dialect known to such
arrested or detained person, otherwise, such investigation report shall be null and void and of no
effect whatsoever.

(d) Any extrajudicial confession made by a person arrested, detained or under custodial investigation
shall be in writing and signed by such person in the presence of his counsel or in the latter's absence,
upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse,
the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the
gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in
any proceeding.

(e) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised
Penal Code, or under custodial investigation, shall be in writing and signed by such person in the
presence of his counsel; otherwise the waiver shall be null and void and of no effect.

(f) Any person arrested or detained or under custodial investigation shall be allowed visits by or
conferences with any member of his immediate family, or any medical doctor or priest or religious
minister chosen by him or by any member of his immediate family or by his counsel, or by any
national non-governmental organization duly accredited by the Commission on Human Rights of by
any international non-governmental organization duly accredited by the Office of the President. The
person's "immediate family" shall include his or her spouse, fiancé or fiancée, parent or child, brother
or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward.

As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a
person who is investigated in connection with an offense he is suspected to have committed, without
prejudice to the liability of the "inviting" officer for any violation of law.

Section 3. Assisting Counsel. – Assisting counsel is any lawyer, except those directly affected by the
case, those charged with conducting preliminary investigation or those charged with the prosecution
of crimes.

The assisting counsel other than the government lawyers shall be entitled to the following fees;

(a) The amount of One hundred fifty pesos (P150.00) if the suspected person is chargeable with light
felonies;

(b) The amount of Two hundred fifty pesos (P250.00) if the suspected person is chargeable with less
grave or grave felonies;

(c) The amount of Three hundred fifty pesos (P350.00) if the suspected person is chargeable with a
capital offense.

The fee for the assisting counsel shall be paid by the city or municipality where the custodial
investigation is conducted, provided that if the municipality of city cannot pay such fee, the province
comprising such municipality or city shall pay the fee: Provided, That the Municipal or City Treasurer
must certify that no funds are available to pay the fees of assisting counsel before the province pays
said fees.

In the absence of any lawyer, no custodial investigation shall be conducted and the suspected person
can only be detained by the investigating officer in accordance with the provisions of Article 125 of
the Revised Penal Code.

Section 4. Penalty Clause. – (a) Any arresting public officer or employee, or any investigating officer,
who fails to inform any person arrested, detained or under custodial investigation of his right to
remain silent and to have competent and independent counsel preferably of his own choice, shall
suffer a fine of Six thousand pesos (P6,000.00) or a penalty of imprisonment of not less than eight (8)
years but not more than ten (10) years, or both. The penalty of perpetual absolute disqualification
shall also be imposed upon the investigating officer who has been previously convicted of a similar
offense.

The same penalties shall be imposed upon a public officer or employee, or anyone acting upon orders
of such investigating officer or in his place, who fails to provide a competent and independent
counsel to a person arrested, detained or under custodial investigation for the commission of an
offense if the latter cannot afford the services of his own counsel.

(b) Any person who obstructs, prevents or prohibits any lawyer, any member of the immediate family
of a person arrested, detained or under custodial investigation, or any medical doctor or priest or
religious minister chosen by him or by any member of his immediate family or by his counsel, from
visiting and conferring privately with him, or from examining and treating him, or from ministering to
his spiritual needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of
imprisonment of not less than four (4) years nor more than six (6) years, and a fine of four thousand
pesos (P4,000.00).
The provisions of the above Section notwithstanding, any security officer with custodial responsibility
over any detainee or prisoner may undertake such reasonable measures as may be necessary to
secure his safety and prevent his escape.

Section 5. Repealing Clause. – Republic Act No. No. 857, as amended, is hereby repealed. Other laws,
presidential decrees, executive orders or rules and regulations, or parts thereof inconsistent with the
provisions of this Act are repealed or modified accordingly.

Section 6. Effectivity. – This Act shall take effect fifteen (15) days following its publication in the
Official Gazette or in any daily newspapers of general circulation in the Philippines.

Approved: April 27, 1992.