Public Int'l Law Case Digest

Kuroda vs Jalandoni
83 Phil 171


Facts:

Shinegori Kuroda, a former lieutenant-general of the Japanese Imperial Army and commanding general of the Japanese Imperial Forces in the Philippines was charged before the Philippine Military Commission for war crimes. Being the commanding general of the enemy forces during the war period, he was tried for failing to discharge his duties well and permitting the brutal atrocities and other high crimes committed by his men against noncombatant civilians and prisoners of the Japanese forces, in clear violation of the laws and customs of war.

Kuroda, in his petition, argues that the Military Commission is not a valid court because the law that created it, Executive Order No. 68, is unconstitutional. He further contends that using as basis the Hague Convention’s Rules and Regulations covering Land Warfare for the war crimes committed cannot stand ground as the Philippines was not a signatory of such rules in such convention. Furthermore, he alleges that the United States is not a party of interest in the case and that the two US prosecutors cannot practice law in the Philippines.

Issues:

1. Whether or not Executive Order No. 68 is constitutional.

2. Whether or not the US is a party of interest to this case.

Ruling:

The Supreme Court ruled that Executive Order No. 68, creating the National War Crimes Office and prescribing rules on the trial of accused war criminals is constitutional as it is aligned with Sec. 3, Article 2 of the Constitution which states that, “The Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of international law as part of the law of the nation.” The generally accepted principles of international law includes those formed during the Hague Convention, the Geneva Convention and other international jurisprudence established by the United Nations. These include the principle that all persons, military or civilian, who have been guilty of planning, preparing or waging a war of aggression and of the commission of crimes and offenses in violation of laws and customs of war, are to be held accountable. In the doctrine of incorporation, the Philippines abides by these principles and therefore has a right to try persons that commit such crimes and most especially when it is committed againsts its citizens. It abides with it even if it was not a signatory to these conventions by the mere incorporation of such principles in the constitution.

The United States is a party of interest because the country and its people have been equally, if not more greatly, aggrieved by the crimes with which the petitioner is charged for. By virtue of Executive Order No. 68, the Military Commission is a special military tribunal and that the rules as to parties and representation are not governed by the rules of court but by the very provisions of this special law.

J.B.L. Reyes vs Bagatsing
G.R. No. 65366 October 25, 1983


Facts:

Retired Justice Jose B. L. Reyes, in behalf of the Anti-Bases Coalition, sought for a permit from the City of Manila to hold a peaceful march and rally on October 26, 1983, starting from the Luneta Park to the gates of the United States embassy. The objective of the rally was to peacefully petition for the removal of all foreign military bases in the country and to present such a petition to a representative of the US Embassy so that it may be delivered to the United States Ambassador. The coalition initially sought to compel the mayor of the City of Manila to make a decision on the application for a permit but it was discovered later that a denial of the application has already been sent through mail. The same letter also provided that should the rally be held somewhere else, permit may be issued. The respondent mayor alleged that holding the rally in front of the US Embassy is a violation of the resolutions of the Vienna Convention on Diplomatic Relations adopted in 1961 and of which the Philippines is a signatory. In the doctrine of incorporation, the Philippines has to comply with such generally accepted principles of international law as part of the law of the land. The petitioner, on the other hand, contends that the denial of the permit is a violation of the constitutional right of the freedom of speech and expression.

Issue:

Whether or not the Anti-Bases Coalition should be allowed to hold a peaceful protest rally in front of the US Embassy.

Ruling:

The Supreme Court ruled to allow the rally in front of the US Embassy to protect the exercise of the rights to free speech and of peaceful assembly and on the ground that there was no showing of the existence of a clear and present danger of a substantive evil that could justify the denial of the permit. These rights are not only assured by our constitution but also provided for in the Universal Declaration of Human Rights. Between the two generally accepted principles of diplomatic relations and human rights, the latter takes higher ground. The exercise of the right of freedom of expression and of peaceful assembly is highly ranked in the scheme of constitutional values.

Tanada vs Angara
272 SCRA 18 May 2, 1997

Facts:

On April 15, 1994, the Philippine Government represented by the Secretary of the Department of Trade and Industry signed the final act binding the Philippine Government to submit to its respective competent authorities the WTO (World Trade Organization) Agreements to seek approval for such. On December 14, 1994, Resolution No. 97 was adopted by the Philippine Senate ratifying such WTO Agreement.The present petition was filed assailing the constitutionality of the WTO agreement as it violates Section 19, Article II of the Constitution, providing for the development of a self reliant and independent national economy, and Sections 10 and 12 of Article XII thereof, providing for the “Filipino first” policy.

Issue:

Whether or not Resolution No. 97 ratifying the WTO Agreement is unconstitutional.

Ruling:

The Supreme Court ruled that Resolution No. 97 is not unconstitutional. While the constitution mandates a bias in favor of Filipino goods, services, labor and enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity, and limits protection of Filipino interests only against foreign competition and trade practices that are unfair. In other words, the Constitution did not intend to pursue an isolationalist policy. Furthermore, the constitutional policy of a “self-reliant and independent national economy” does not necessarily rule out the entry of foreign investments, goods and services. It contemplates neither “economic seclusion” nor “mendicancy in the international community.”The Senate, after deliberation and voting, gave its consent to the WTO Agreement, thereby making it “a part of the law of the land”. The Supreme Court must give due respect to an equal department in government. It presumes its actions as regular and done in good faith unless there is convincing proof and persuasive agreements to the contrary. As a result, the ratification of the WTO Agreement limits or restricts the absoluteness of sovereignty. A treaty engagement is not a mere obligation but creates a legally binding obligation on the parties. A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.

Agustin vs Edu
88 SCRA 195

Facts:

This case is a petition assailing the validity or the constitutionality of Letter of Instruction No. 229 issued by President Ferdinand E. Marcos, requiring all vehicle owners, users or drivers to procure early warning devices to be installed a distance away from a vehicle when it is stalled or is disabled. In compliance with such letter of instruction, the Commissioner of the Land Transportation Office issued Administrative Order No. 1 directing compliance with such Instruction. This petition alleges that such letter of instruction and subsequent administrative order are unlawful and unconstitutional as it violates the provisions on due process, equal protection of the law and undue delegation of police power.

Issue:

Whether or not Letter of Instruction No. 229 and the subsequent Administrative Order issued are unconstitutional.

Ruling:

The Supreme Court ruled for the dismissal of the petition. The statutes in question are deemed not unconstitutional. These were definitely in the exercise of police power as such were established to promote public welfare and public safety. In fact, the letter of instruction is based on the constitutional provision of adopting the generally accepted principles of international law as part of the law of the land. The letter of instruction mentions, as its premise and basis, the resolutions of the 1968 Vienna Convention on Road Signs and Signals and the discussions on traffic safety by the United Nations, and that such Letter was issued in consideration of a growing number of road accidents due to stalled or parked vehicles on the streets and highways.

Mejoff vs Director of Prisons
90 Phil 70 September 26, 1951

Facts:

This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in a decision of this Court on July 30, 1949. "The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country from Shanghai as a secret operative by the Japanese forces during the latter's regime in these Islands. Upon liberation, he was arrested as a Japanese spy by U. S. Army Counter Intelligence Corps. Thereafter, the People's Court ordered his release. But the Deportation Board taking his case up found that having no travel documents, Mejoff was an illegal alien in this country, and consequently referred the matter to the immigration authorities. After the corresponding investigation, the Immigration Board of Commissioners declared on April 5, 1948 that Mejoff had entered the Philippines illegally in 1944, without inspection and admission by the immigration officials at a designated port of entry and, therefore, it ordered that he be deported on the first available transportation to Russia. The petitioner was then under custody, he having been arrested on March 18, 1948. In October 1948, after repeated failures to ship this deportee abroad, the authorities moved him to Bilibid Prison at Muntinglupa where he has been confined up to the present time, inasmuch as the Commissioner of Immigration believes it is for the best interests of the country to keep him under detention while arrangements for his departure are being made. Two years having elapsed since the aforesaid decision was promulgated, the Government has not found ways and means of removing the petitioner out of the country, and none are in sight, although, it should be said in fairness to the deportation authorities that it was through no fault of theirs that no ship or country would take the petitioner.

Issue:

Whether or not Boris Mejoff should be released from prison pending his deportation.

Ruling:

The protection against deprivation of liberty without due process of law, and except for crimes committed against the laws of the land, is not limited to Philippine citizens but extends to all residents, except enemy aliens, regardless of nationality. Moreover, Sec. 3, Art. II of the Constitution of the Philippines "adopts the generally accepted principles of international law as part of the law of the Nation." And in a resolution entitled, "Universal Declaration Of Human Rights," and approved by the General Assembly of the United Nations, of which the Philippines is a member, at its plenary meeting on December 10, 1948, the right to life and liberty and all other fundamental rights as applied to all human beings were proclaimed. It was there resolved that "all human beings are born free and equal in degree and rights" (Art. 1); that "everyone is entitled to all the rights and freedom set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, nationality or social origin, property, birth, or other status" (Art. 2); that "every one has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law" (Art. 8); that "no one shall be subjected to arbitrary arrest, detention or exile" (Art. 9 ); etc. Premises considered, the writ will issue commanding the respondents to release the petitioner from custody upon these terms: that the petitioner shall be placed under the surveillance of the immigration authorities or their agents in such form and manner as may be deemed adequate to insure that he keep peace and be available when the Government is ready to deport him. The surveillance shall be reasonable and the question of reasonableness shall be submitted to this Court or to the Court of First Instance of Manila for decision in case of abuse. No costs will be charged.

Beware of the Charter Change Bait

Charter Change in a Time of Crisis

It is interesting to note that in this time of global economic crisis, Filipino politicians are more concerned about changing the constitution rather than looking for creative ways of cushioning the crisis' impact on a large number of their constituents who will be greatly affected by its devastation. While it cannot be denied that our constitution desperately needs some degree of overhauling, especially in the area involving the economic provisions, it is also equally undeniable that our politcians' greed for power and their shameless lust of eternally holding on to it is, to say the least, deplorable.

The Philippine constitution is definitely wanting in the aspect of competitiveness due to some limitations imposed under its economic provisions. The ownership restriction on business and real property not only depicts a highly obsolete sense of nationalism on the part of the framers of the constitution but also conveys an impractical adherence to protectionism. Candidly speaking, this is not the right attitude to follow in order for our country to be at par with its Asian neighbors and to be able to compete in the global arena. What we need to do right now is to come out of the box and to step up with what the rest of the world is doing.

Unfortunately, however, our politcians are making a big fuss over this issue to cover up for an impending sinister plot. They are actually conspiring with each other by pretending to amend our constitution in order to cure the 'inadequacies' contained therein. They want the people to believe that their motive for pushing such a proposal is noble. But judging from the way these traditional politicians have been conducting themselves on matters affecting the operation of the government and the welfare of the people, the truth is that they are actually concealing their real intention under the guise of a good motive.

Pushing for a charter change at this point in time is not the most prudent thing to do for our politicians. It is ill-timed, unnecessary and counter-productive. A great majority of our people believes that the real reason why these politicians are hellbent on changing the constitution is not to amend the economic provisions but to extend the President's term of office. Changing the form of government to a parliamentary unicameral system would pave the way for President Arroyo to become Prime Minister and thus perpetuate their family's hold on power.

It is without question that our nation's constitution needs a major change but it should be done after the 2010 elections. That is the most logical thing to do in oder to erase any cloud of doubt as to its real intention. The Arroyo administration and its allies should learn their lesson the easy way by reflecting at the mistakes of past administrations rather than learning it the hard way by getting booted out from office by an angry nation. As the curtains start to fall signalling the approaching end of its term of office, its incumbent officials can still pull a grand finale of sorts by cleansing the government of the evils of graft and corruption and coming up with concrete programs that aim to protect its citizens of the crippling effect of the global finacial meltdown. That would, to some degree, be a great way of fixing a shattered reputation.

On the subject of Fallacies

Verbal fallacies

Verbal fallacies are those in which a conclusion is obtained by improper or ambiguous use of words. They are generally classified as follows.

Equivocation consists in employing the same word in two or more senses, e.g. in a syllogism, the middle term being used in one sense in the major and another in the minor premise, so that in fact there are four not three terms ("All heavy things have a great mass; this is heavy fog; therefore this fog has a great mass.")

Connotation fallacies occur when a dysphemistic word is substituted for the speaker's actual quote and used to discredit the argument. It is a form of attribution fallacy.

Amphibology is the result of ambiguity of grammatical structure, e.g. of the position of the adverb "only" in careless writers ("He only said that," in which sentence, the adverb has been intended to qualify any one of the other three words).

Fallacy of Composition "From Each to All". Arguing from some property of constituent parts, to the conclusion that the composite item has that property e.g. "all the band members (constituent parts) are highly skilled, therefore the band (composite item) is highly skilled". This can be acceptable (i.e., not a fallacy) with certain arguments such as spatial arguments e.g. "all the parts of the car are in the garage, therefore the car is in the garage"

Material fallacies

The taxonomy of material fallacies widely adopted by modern logicians and based on that of Aristotle, Organon (Sophistici elenchi), is as follows:

Fallacy of Accident (also called destroying the exception or a dicto simpliciter ad dictum secundum quid)--makes a generalization that disregards exceptions (e.g., Cutting people is a crime. Surgeons cut people. Therefore, surgeons are criminals.)

Begging the question (also called Petitio Principii, Circulus in Probando--arguing in a circle, or assuming the answer)--demonstrates a conclusion by means of premises that assume that conclusion (e.g., Paul must be telling the truth, because I have heard him say the same thing many times before. Paul may be consistent in what he says, but he may have been lying the whole time.)

Fallacy of False Cause or Non Sequitur (Latin for "it does not follow")--incorrectly assumes one thing is the cause of another (e.g., Our nation will prevail because God is great.)

• A special case of this fallacy also goes by the Latin term post hoc ergo propter hoc--the fallacy of believing that temporal succession implies a causal relation.
• Another special case is given by the Latin term cum hoc ergo propter hoc -- the fallacy of believing that happenstance implies causal relation (aka as fallacy of causation versus correlation: assumes that correlation implies causation).

Fallacy of Many Questions (Plurium Interrogationum)--groups more than one question in the form of a single question (e.g., Is it true that you no longer beat your wife? A yes or no answer will still be an admission of guilt to wife-beating.)

Argumentum as populum (Argument By Emotive Language - Appeal To The People) Using emotionally loaded words to sway the audience's sentiments instead of their minds. Many emotions can be useful: anger, spite, envy, condescension, and so on.

Example:
A person on trial for a crime of theft pleaded for mercy on the ground that he had force to steal to provide food for his starving family, instead of presenting evidence in his defense.

Argumentum ad verecundiam (Appeal To False Authority) This fallacy is committed when the debater contends that what he alleges is valid because it is supported by a person who commands respect and reverence.

For example: Famous physicist John Taylor studied Uri Geller extensively and found no evidence of trickery or fraud in his feats." Taylor was not qualified to detect trickery or fraud of the kind used by stage magicians. Taylor later admitted Geller had tricked him, but he apparently had not figured out how.

Argumentum ad judicium (Fallacy Of The General Rule) Assuming that something true in general is true in every possible case. This fallacy is committed when the debater ignores the real question and maintains that his contention is valid because people in general believe it to be so.

Example:
All chairs have four legs. Except that rocking chairs don't have any legs, and what is a one-legged "shooting stick" if it isn't a chair?

Argumentum ad bacculum (Appeal To Force) Committed when a debater ignores the real question and appeals to force rather than reason.

Example:
The traditional religious threat is that one will burn in Hell

Argumentum ad ignorantiam (Burden Of Proof) The claim that whatever has not yet been proved false must be true (or vice versa). Essentially the arguer claims that he should win by default if his opponent can't make a strong enough case. It is a case of shifting of burden of proof.

Example:
I maintain that there are ghosts, because you cannot prove that there are no ghosts.

About Argumentation

Universal Concept of Argumentation

It embraces the arts and sciences of civil debate, dialogue, conversation, and persuasion; studying rules of inference, logic, and procedural rules in both artificial and real world settings. Argumentation is concerned primarily with reaching conclusions through logical reasoning, that is, claims based on premises. Although including debate and negotiation which are concerned with reaching mutually acceptable conclusions, argumentation theory also encompasses eristic dialog, the branch of social debate in which victory over an opponent is the primary goal. This art and science is often the means by which people protect their beliefs or self-interests in rational dialogue, in common parlance, and during the process of arguing. Argumentation is used in law, for example in trials, in preparing an argument to be presented to a court, and in testing the validity of certain kinds of evidence. Also, argumentation scholars study the post hoc rationalizations by which organizational actors try to justify decisions they have made irrationally.

Why: To convey ideas, and help to move others to your point of view. What's good: Being a good orator (speaker), using varied and interesting language, being confident, and being well informed! What is argumentation vs debate: Hard to say here, the common definition of arguing is a mindless quarrel, which doesn’t say what argument really is: presenting one's ideas in a coherent and smart way, to inform and convince. Values of debate: It's a nice, controlled, civilized (hopefully) method of two or more people exchanging ideas, or in the case of the Presidential debate, telling the nation their beliefs on a variety of subjects.
Argumentation and debate helps students develop clear, logical and ethical arguments using critical-thinking strategies in argumentation speeches as well as Lincoln-Douglas, cross-examination, parliamentary, and Oxford debates. The course is offered as a separate course or as an honors option in a regular course. Students improve their critical thinking, reasoned decision-making, research strategies, advocacy skills, presentation of constructive arguments, and refutation of their opponents' argument.
Since debate requires experienced instruction, Dr. Jack David Armold shares his knowledge and experience with them as a former high school and college debater as well as a debate coach at Southern Nazarene University, University of Houston, University of Illinois at Chicago and Urbana-Champaign, and Jackson State University.
To be successful in this course, the student should be highly motivated to analyze and explore issues through research, be able to clearly state arguments with supporting evidence and to structure persuasive reasoning. Students learn to avoid fallacies, work with colleagues in building affirmative and negative cases, refute arguments, and deliver effective constructive and refutation speeches. Although the student is not required to have taken a fundamentals of public speaking course elsewhere, he or she would greatly benefit from having taken one. Previous public speaking experience is also an asset. Debate encourages student scholarship since organizing, presenting, and defending a debate case are directly transferable to many other academic pursuits and students' chosen careers. Training and experience in argumentation, debate, and critical thinking are important assets in many other areas of graduate study and in business and professional endeavors

Main Elements of Argumentation:

Understanding and identifying arguments, either explicit or implied, and the goals of the participants in the different types of dialogue.

Identifying the premises from which conclusions are derived
Establishing the "burden of proof" — determining who made the initial claim and is thus responsible for providing evidence why his/her position merits acceptance

For the one carrying the "burden of proof", the advocate, to marshal evidence for his/her position in order to convince or force the opponent's acceptance. The method by which this is accomplished is producing valid, sound, and cogent arguments, devoid of weaknesses, and not easily attacked.

In a debate, fulfillment of the burden of proof creates a burden of rejoinder. One must try to identify faulty reasoning in the opponent’s argument, to attack the reasons/premises of the argument, to provide counterexamples if possible, to identify any logical fallacies, and to show why a valid conclusion cannot be derived from the reasons provided for his/her argument.

Components of Argument:

Claim - Conclusions whose merit must be established. For example, if a person tries to convince a listener that he is a British citizen, the claim would be “I am a British citizen.”

Data - The facts we appeal to as a foundation for the claim. For example, the person introduced in 1 can support his claim with the supporting data “I was born in Bermuda.”

Warrant - The statement authorizing our movement from the data to the claim. In order to move from the data established in 2, “I was born in Bermuda,” to the claim in 1, “I am a British citizen,” the person must supply a warrant to bridge the gap between 1 & 2 with the statement “A man born in Bermuda will legally be a British Citizen.”

Backing - Credentials designed to certify the statement expressed in the warrant; backing must be introduced when the warrant itself is not convincing enough to the readers or the listeners. For example, if the listener does not deem the warrant in 3 as credible, the speaker will supply the legal provisions as backing statement to show that it is true that “A man born in Bermuda will legally be a British Citizen.”

Rebuttal - Statements recognizing the restrictions to which the claim may legitimately be applied. The rebuttal is exemplified as follows, “A man born in Bermuda will legally be a British citizen, unless he has betrayed Britain and has become a spy of another country.”

Qualifier - Words or phrases expressing the speaker’s degree of force or certainty concerning the claim. Such words or phrases include “possible,” “probably,” “impossible,” “certainly,” “presumably,” “as far as the evidence goes,” or “necessarily.” The claim “I am definitely a British citizen” has a greater degree of force than the claim “I am a British citizen, presumably.

Kinds of argumentation:

§ Conversational argumentation

The study of naturally-occurring conversation arose from the field of sociolinguistics. It is usually called conversational analysis. Inspired by ethnomethodology, it was developed in the late 1960s and early 1970s principally by the sociologist Harvey Sacks and, among others, his close associates Emanuel Schegloff and Gail Jefferson. Sacks died early in his career, but his work was championed by others in his field, and CA has now become an established force in sociology, anthropology, linguistics, speech-communication and psychology.[13] It is particularly influential in interactional sociolinguistics, discourse analysis and discursive psychology, as well as being a coherent discipline in its own right. Recently CA techniques of sequential analysis have been employed by phoneticians to explore the fine phonetic details of speech.

Empirical studies and theoretical formulations by Sally Jackson and Scott Jacobs, and several generations of their students, have described argumentation as a form of managing conversational disagreement within communication contexts and systems that naturally prefer agreement.

§ Mathematical argumentation

The basis of mathematical truth has been the subject of long debate. Frege in particular sought to demonstrate (see Gottlob Frege, The Foundations of Arithemetic, 1884, and Logicism in Philosophy of mathematics) that arithmetical truths can be derived from purely logical axioms and therefore are, in the end, logical truths. The project was developed by Russell and Whitehead in their Principia Mathematica. If an argument can be cast in the form of sentences in Symbolic Logic, then it can be tested by the application of accepted proof procedures. This has been carried out for Arithmetic using Peano axioms. Be that as it may, an argument in Mathematics, as in any other discipline, can be considered valid just in case it can be shown to be of a form such that it cannot have true premises and a false conclusion.

§ Scientific argumentation

Perhaps the most radical statement of the social grounds of scientific knowledge appears in Alan G.Gross "The Rhetoric of Science." Cambridge: Harvard University Press, 1990. Gross holds that science is rhetorical "without remainder," meaning that scientific knowledge itself cannot be seen as an idealized ground of knowledge. Scientific knowledge is produced rhetorically, meaning that it has special epistemic authority only insofar as its communal methods of verification are trustworthy. This thinking represents an almost complete rejection of the foundationalism on which argumentation was first based.

§ Legal argumentation

Legal arguments (or oral arguments) are spoken presentations to a judge or appellate court by a lawyer (or parties when representing themselves) of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute. A closing argument (or summation) is the concluding statement of each party's counsel (often called an attorney in the United States) reiterating the important arguments for the trier of fact, often the jury, in a court case. A closing argument occurs after the presentation of evidence.

§ Political argumentation

Political arguments are used by academics, media pundits, candidates for political office and government officials. Political arguments are also used by citizens in ordinary interactions to comment about and understand political events. The rationality of the public is a major question in this line of research. A robust political science research tradition seems to prove that the American public is largely irrational and ignorant of even the most basic knowledge of national or world affairs. Political scientist S. Popkin coined the expression "low information voters" to describe most voters who know very little about politics or the world in general.

Some theorists have inferred from this that only comprehensively trained elites can debate public issues. They point as additional proof to the practice of academic debate in the United States, an activity almost exclusively involving children of the upper middle classes, future lawyers and graduate students, and not ordinary citizens