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TheTheThe PHILPHILPHIL AAA JULY-DECEMBER 2008 VOL. 10, ISSUE NO. 30 JJJUDICIALUDICIALUDICIAL OURNALOURNALOURNAL EEEXTRALEGAL K KKILLINGSILLINGSILLINGS ANDANDAND E EENFORNFORNFORCEDCEDCED DDDISAPPEARANCES I.I. SI. SSPEECHESPEECHESPEECHES II.II. LII. LLECTURESECTURESECTURES III.III.III. TTTHEHEHE I IINTERNNTERNNTERNAAATIONTIONTIONALALAL B BBILLILLILL OFOFOF H HHUMANUMANUMAN R RRIGHTSIGHTSIGHTS IVIVIV.. U. UUNIVERSAL H HHUMANUMANUMAN R RRIGHTSIGHTSIGHTS IIINSTRNSTRNSTRUMENTSUMENTSUMENTS VVV.. I. IISSUSSUSSUANCESANCESANCES VI. RVI. REPOREPOREPORTSTSTS TTThe PHILJPHILJhe A JJA udicial JJudicial ourourournal.nal.nal. The PHILJA Judicial Journal is published twice a year by the Research, Publications and Linkages Office of the Philippine Judicial Academy (PHILJA). The Journal features articles, lectures. research outputs and other materials of interest to members of the Judiciary, particularly judges, as well as law students and practitioners. The views expressed by the authors do not necessarily reflect the views of either the Academy or its editorial board. Editorial and general offices are located at PHILJA, 3rd Floor, Centennial Building, Supreme Court, Padre Faura St., Manila. Tel. No.: 552-9524 Telefax No.: 552-9628 Email: [email protected]; [email protected] CONTRIBUTIONS. The PHILJA Judicial Journal invites contributions. Please include author’s name and biographical information. The editorial board reserves the right to edit materials submitted for publication. Copyright © 2008 by The PHILJA Judicial Journal. All rights reserved. For more information, please visit the PHILJA website at http://philja.judiciary.gov.ph. ISSN 2244-5854 SUPREME COURT OF THE PHILIPPINES CHIEF JUSTICE Hon. REYNATO S. PUNO ASSOCIATE JUSTICES Hon. LEONARDO A. QUISUMBING Hon. CONSUELO YNARES-SANTIAGO Hon. ANTONIO T. CARPIO Hon. MA. ALICIA AUSTRIA MARTINEZ Hon. RENATO C. CORONA Hon. CONCHITA CARPIO MORALES Hon. ADOLFO S. AZCUNA Hon. DANTE O. TINGA Hon. MINITA V. CHICO-NAZARIO Hon. PRESBITERO J. VELASCO, Jr. Hon. ANTONIO EDUARDO B. NACHURA Hon. RUBEN T. REYES Hon. TERESITA J. LEONARDO-DE CASTRO Hon. ARTURO D. BRION COURT ADMINISTRATOR Hon. JOSE P. PEREZ DEPUTY COURT ADMINISTRATORS Hon. REUBEN P. DE LA CRUZ Hon. ANTONIO H. DUJUA Hon. NIMFA C. VILCHES CLERK OF COURT Attorney MA. LUISA D. VILLARAMA ASSISTANT COURT ADMINISTRATORS Attorney JOSE MIDAS P. MARQUEZ Hon. JESUS EDWIN A. VILLASOR Attorney THELMA C. BAHIA ASSISTANT CLERK OF COURT Attorney FELIPA B. ANAMA DIVISION CLERKS OF COURT Attorney ENRIQUETA ESGUERRA VIDAL Attorney LUDICHI Y. NUNAG Attorney LUCITA A. SORIANO PHILIPPINE JUDICIAL ACADEMY Board of Trustees Hon. REYNATO S. PUNO Chief Justice Chairman Hon. LEONARDO A. QUISUMBING Senior Justice, Supreme Court Vice Chairman Members Hon. AMEURFINA A. MELENCIO HERRERA Hon. JOSE P. PEREZ Chancellor Court Administrator Hon. CONRADO M. VASQUEZ, Jr. Hon. DIOSDADO M. PERALTA Presiding Justice, Court of Appeals Presiding Justice, Sandiganbayan Hon. ERNESTO D. ACOSTA Hon. ANTONIO M. EUGENIO, Jr. Presiding Justice, Court of Tax Appeals President, Philippine Judges Association Hon. CECILYN B. VILLAVERT Dean PERRY L. PE Executive Judge, MeTC, Valenzuela City President, Philippine Association of Law Schools Executive Officials Hon. AMEURFINA A. MELENCIO HERRERA Hon. JUSTO P. TORRES, Jr. Chancellor Vice Chancellor Hon. MARINA L. BUZON Executive Secretary Chiefs of Offices Hon. JUSTO P. TORRES, Jr. Hon. DELILAH V. MAGTOLIS Vice Chancellor Academic Affairs Office Associate Dean SEDFREY M. CANDELARIA Hon. BERNARDO T. PONFERRADA Research, Publications and Linkages Office Judicial Reforms Office Chairpersons, Curricular Departments Hon. AMEURFINA A. MELENCIO HERRERA Chair Dean PACIFICO A. AGABIN Hon. RUBEN F. BALANE Constitutional Law Civil Law Hon. ALFREDO L. BENIPAYO Hon. EDILBERTO G. SANDOVAL Remedial Law Criminal Law Hon. JOSE P. PEREZ Hon. HILARION L. AQUINO Court Management Ethics and Judicial Conduct Dean CESAR L. VILLANUEVA Dr. PURIFICACION V. QUISUMBING Commercial Law International and Human Rights Law Fr. RANHILIO C. AQUINO Professor MYRNA S. FELICIANO Jurisprudence and Legal Philosophy Legal Method and Research Associate Dean SEDFREY M. CANDELARIA Atty. EMMANUEL L. CAPARAS Special Areas of Concern Court Technology Professor ALFREDO F. TADIAR Hon. JAINAL D. RASUL Alternative Dispute Resolution Shari’a and Islamic Jurisprudence Judicial Reforms Group Hon. AMEURFINA A. MELENCIO HERRERA Presiding Officer Justice Ameurfina A. Melencio Herrera Chancellor Professor Sedfrey M. Candelaria Editor in Chief Editorial and Research Staff Atty. Ma. Melissa Dimson-Bautista Arsenia M. Mendoza Armida M. Salazar Jocelyn D. Bondoc Ronald Paz Caraig Christine A. Ferrer Joanne Narciso-Medina Sarah Jane S. Salazar Charmaine C. Saltivan Jeniffer P. Sison Circulation and Support Staff Romeo A. Arcullo Lope R. Palermo Daniel S. Talusig Printing Services Leticia G. Javier and Printing Staff VOLUME 10 ISSUE NO. 30 JULY–DECEMBER 2008 THE PHILJA JUDICIAL JOURNALALAL CONTENTS OFFICIALS OF THE SUPREME COURT OF THE PHILIPPINES ......... iv OFFICIALS OF THE PHILIPPINE JUDICIAL ACADEMY ...................... v I. SPEECHES OPENING REMARKS AND STATEMENT OF PURPOSE Prof. Sedfrey M. Candelaria ............................................................ 1 COMBATING EXTRALEGAL KILLINGS AND ENFORCED DISAPPEARANCES Justice Ameurfina A. Melencio Herrera (ret.) ........................ 5 MESSAGE Chairperson Leila M. De Lima ..................................................... 9 THE T ASK IS NOT Y ET DONE Chief Justice Reynato S. Puno ..................................................... 17 II. LECTURES THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES (GRP) TECHNICAL WORKING GROUP REPORT ON EXTRALEGAL KILLINGS Prof. Sedfrey M. Candelaria ........................................................ 24 CONTENTS COMMENTS ON THE EXTRALEGAL KILLINGS REPORTS FROM THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES AND KARAPATAN Chairperson Leila M. De Lima .................................................... 39 KARAPATAN HUMAN RIGHTS REPORT Ms. Lovella A. de Castro .............................................................. 43 THE CONSTITUTIONAL FRAMEWORK Dean Pacifico A. Agabin, JSD .................................................... 57 FUNDAMENTAL PRINCIPLES ON STATE RESPONSIBILITY Prof. Sedfrey M. Candelaria ........................................................ 86 UPDATES ON INTERNATIONAL HUMAN RIGHTS LAW: APPLICABLE STANDARDS Prof. Carlos P. Medina, Jr. ............................................................ 99 INTERNATIONAL HUMANITARIAN LAW STANDARDS: EXTRALEGAL KILLINGS AND ENFORCED DISAPPEARANCES Prof. Herminio Harry L. Roque, Jr. ......................................... 120 CHARACTERIZING KILLINGS: EXTRALEGAL KILLINGS AND ENFORCED DISAPPEARANCES Prof. Herminio Harry L. Roque, Jr. ..................................... 147 DETERMINATION OF CRIMES INVOLVING EXTRALEGAL KILLINGS AND ENFORCED DISAPPEARANCES Prosecutor Lilian Doris S. Alejo ............................................. 157 CONTENTS FORENSIC EVIDENCE INVOLVING EXTRALEGAL KILLINGS AND ENFORCED DISAPPEARANCES: THE PHILIPPINE PERSPECTIVE Dr. Racquel Del Rosario-Fortun ........................................... 166 THE DOCTRINE OF COMMAND RESPONSIBILITY Prof. Carlos P. Medina, Jr. ......................................................... 204 NEW RULES PROMULGATED BY THE SUPREME COURT IN RELATION TO EXTRALEGAL KILLINGS AND ENFORCED DISAPPEARANCES (WRITS OF AMPARO AND HABEAS DATA) Justice Adolfo S. Azcuna ............................................................. 220 THE RULES ON THE W RIT OF AMPARO AND WRIT OF HABEAS DATA IN RELATION TO EXTRALEGAL KILLINGS AND ENFORCED DISAPPEARANCES Justice Lucas P. Bersamin ............................................................ 236 III.III. THE INTERNAAATIONTIONTIONAL BILLBILLAL OF HUMAN RIGHTS UNIVERSAL DECLARATION OF HUMAN RIGHTS ...................... 265 INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS ............................................................. 275 CONTENTS IVIVIV. UNIVERSAL HUMAN RIGHTS INSTRINSTRINSTRUMENTSUMENTSUMENTS INTERNATIONAL CONVENTION FOR THE PROTECTION OF ALL PERSONS FROM ENFORCED DISAPPEARANCE ............ 307 UNITED NATIONS MANUAL ON THE EFFECTIVE PREVENTION AND INVESTIGATION OF EXTRALEGAL, ARBITRARY AND SUMMARY EXECUTIONS ................................................... 338 VVV. ISSUISSU. ANCESANCESANCES ADMINISTRATIVE MATTER NO. 07-9-12-SC THE RULE ON THE W RIT OF AMPARO .................................. 447 ADMINISTRATIVE MATTER NO. 08-1-16-SC RULE ON THE W RIT OF HABEAS DATA ................................ 459 VI. REPORTSTSTS INDEPENDENT COMMISSION TO ADDRESS MEDIA AND ACTIVIST KILLINGS CREATED UNDER ADMINISTRATIVE ORDER NO. 157 (S. 2006) REPORT ............................................................................................. 467 PROMOTION AND PROTECTION OF ALL HUMAN RIGHTS, CIVIL, POLITICAL, ECONOMIC, SOCIAL AND CULTURAL RIGHTS, INCLUDING THE RIGHT TO DEVELOPMENT REPORT OF THE SPECIAL RAPPORTEUR ON EXTRAJUDICIAL, SUMMARY OR ARBITRARY EXECUTIONS, PHILIP ALSTON ... 574 Opening RROpening emarks and Statement of Purposeposepose∗∗∗ Prof. Sedfrey M. Candelaria∗∗ Today is a very important opening of a series of sessions that will address a very fundamental problem more particularly on the realm of human rights in this country. We are addressing a phenomenon called extralegal killings coupled with enforced disappearances, which has gained prominence internationally in terms of the impact on both domestic and international
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  • The State of Philippine Legal Education Revisited

    The State of Philippine Legal Education Revisited

    The State of Philippine Legal Education Revisited MARIANO F. MAGSALIN, JR.∗ Introduction Imagine a “virtual” panel of the most erudite and specialized law mentors imparting their field of expertise, assisted and complemented by state-of-the-art teaching tools, in downloadable real time for the consumption of students in the comfort and convenience of their homes, workstations or wherever their personal digital assistants take them. Feedback or recitation, examinations and grade dissemination are all done through e-mail or its faster and higher-resolution counterpart. Verily, the paper chase is still on but pursued in a different matrix. This is, or should be, according to some Western legal educators, legal education in the digital age. A counterpoint to this idyllic scenario is Philippine legal education, the development of which may be characterized at best, as spinning on its wheels. For decades, the future of law students has been obdurately consigned to an impractical, inefficient, wagering system, totally subservient to an antiquated bar examination requirement. Many Philippine lawyers have labeled themselves as the best in Asia because of what they perceive to be a difficult rite of passage that is the bar examination, and yet, Philippine law schools have not figured at all as a factor in surveys of the best universities in Asia. Reforms in Philippine legal education have moved glacially. While many foreign law schools have already responded and adapted to the demands of an increasingly globalized and borderless world, the concerns of many law schools in the Philippines are still centered on survival and viability. Competition is at best described as cutthroat and unfair.