2019 Law on Mass Media and Comm. Intro to the Course. Orientation, Profile (Deadline: Jan. 24)

2019 Law on Mass Media & Communication.

Introduction to the Course.

Orientation (Deadline of Profile: Jan. 24, Thursday 12:59pm)

NOTES: INTRODUCTION TO THE COURSE, Law on Mass Media and Communication, marichulambino

                     FULLY BOOKED

(Embedded below is the first handout. In order to conserve paper, water, energy, and other natural resources, and to save government funds, all handouts will be electronically posted rather than printed out and reproduced as paper copies. Students who do not have any electronic device or access to any electronic device may borrow from the department.) 

                               ♥  ♥ 

     More than a hundred years of law and jurisprudence, from 1803 to 2018…
ORIGINS: Philippine constitutional law
The following are bullet points for the intro to the course media law.
Part one of the intro consists of concepts in constitutional law.
Part two is a discussion on the hierarchy of laws.
Part three is the structure of the judiciary.
Classic definitions:
“The Constitution is the fundamental law of the land.”
“The Constitution is the supreme law.”
“The Constitution is the highest law.”
In our theory of the Constitution, the Constitution is the expression of the will of the people in their sovereign capacity.
This means that in constitutional law theory, the words of the Constitution are the words of the people in their sovereign capacity.
To understand this better, let’s look at the origins of Philippine constitutional law.
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DEFINITION, CONSTITUTION. READING MATERIALS:
Philippine constitutional law derives principles from American jurisprudence: “The principles of government and political law of the Philippines are fundamentally derived from American jurisprudence. This condition was the inevitable outcome of the establishment of American rule in the Philippines. When Spain ceded the Philippines to the US, the Spanish Political laws were automatically displaced by those of the US.” (Dean Vicente Sinco, Philippine Political Law)
Note that the American Constitution was born of a revolutionary era. Here are its origins, July 4, 1776 Declaration of the 13 united States of America, later called the Declaration of Independence:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute a new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.”
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Definition of the Constitution. (With particular reference to the Philippine Constitution): “That written instrument enacted by direct action of the people by which the fundamental powers of government are established, limited, and defined, and by which those powers are distributed among several departments for their safe and useful exercise for the benefit of the body politic.” (Justice Malcolm)
In general: “That body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.” (Judge Cooley quoted in Sinco, supra)
“A constitution is a written instrument by which the fundamental powers of government are established, limited, and definedand by which these powers are distributed among several departments, for their more safe and useful exercise, for the benefit of the body politic.” (Justice Miller)
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Marbury v. Madison, 5 U.S. 137, 1803 (“A law repugnant to the Constitution is void.”)
“…(T) he people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness … The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.

“This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.

“Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
“This theory is essentially attached to a written constitution, and is, consequently, to be considered by this court as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.” (Marbury v. Madison, supra)
******
Theory of the Constitution:
McCulloch v. Maryland , 17 U.S. 316 (1819): “… The convention which framed the Constitution was indeed elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation or pretensions to it. … (The) mode of proceeding was adopted, and by the convention, by Congress, and by the State legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject — by assembling in convention. It is true, they assembled in their several States — and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States … From these conventions the Constitution derives its whole authority. The government proceeds directly from the people; is “ordained and established” in the name of the people, and is declared to be ordained, “in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity.”

“The assent of the States in their sovereign capacity is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final. It required not the affirmance, and could not be negatived, by the State Governments. The Constitution, when thus adopted, was of complete obligation, and bound the State sovereignties.
“ “in order to form a more perfect union,” it was deemed necessary to change this alliance into an effective Government, possessing great and sovereign powers and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The Government of the Union then (whatever may be the influence of this fact on the case) is, emphatically and truly, a Government of the people. In form and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.
“This Government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent… that principle is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise so long as our system shall exist.
xxx “A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers … is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations found in the 9th section of the 1st article introduced? It is also in some degree warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a Constitution we are expounding.”
*******

My notes on the origins of Philippine constitutional law: Based on extant records, the following are the fundamental codes and charters established by the revolutionary movement, the Katipunan, and by the revolutionary government that was organized after the overthrow of the Spanish colonial rulers:
In 1896: Cartilla ng Katipunan ng Rebolusyonaryong Pamahalaan: Excerpts (common English translation): “The life that is not consecrated to a lofty and reasonable purpose is a tree without a shade, if not a poisonous weed….To do good for personal gain and not for its own sake is not virtue….It is rational to be charitable and love one’s fellow creature, and to adjust one’s conduct, acts and words to what is in itself reasonable. …. Whether our skin be black or white, we are all born equal: superiority in knowledge, wealth and beauty are to be understood, but not superiority by nature….The honorable man prefers honor to personal gain; the scoundrel, gain to honor….To the honorable man, his word is sacred….Do not waste thy time: wealth can be recovered but not time lost…. Defend the oppressed and fight the oppressor before the law or in the field… xxx)
In 1897: Constitución Provisional de la República de Filipinas : Excerpts (common English translation)”The separation of the Philippines from the Spanish monarchy and their formation into an independent state with its own government called the Philippine Republic has been the end sought by the Revolution in the existing war, begun on the 24th of August, 1896; and therefore, in its name and by the power delegated by the Filipino people, interpreting faithfully their desires and ambitions, we, the representatives of the Revolution, in a meeting at Biac-na-bato, Nov. 1st. 1897, unanimously adopt the following articles for the Constitution of the State: xxx Article I. The supreme government of the Republic shall be vested in a Supreme Council, composed of a President, a Vice-President and four Secretaries, for the conduct of our Foreign Relations, of War, of the Interior, and of the Treasury xxx Article XXII.xxx Religious liberty, the right of association, the freedom of education , the freedom of the press , as well as freedom in the exercise of all classes of professions, arts, trades and industries are established.xxx Article XXIII. Every Filipino shall have the right to direct petitions or present remonstrances of any import whatsoever, in person or through his representative, to the Council of Government of the Republic. Xxx Article XXIV. No person, whatever may be his nationality, shall be imprisoned or held except by virtue of an order issued by a competent court, provided that this shall not apply to crimes which concern the Revolution, the government or the Army.xxx Article XXV. Neither can any individual be deprived of his property or his domicile, except by virtue of judgment passed by a court of competent authority. xxxArticle XXVI. Every Filipino is obliged to serve the Revolution with his services, and property to the extent of his capacity.xxx”
In 1899: Malolos Constitution. Excerpts: “ The President of the Council, Apolinario Mabini. xxx Preamble xxx We, the Representatives of the Filipino people, lawfully convened, in order to establish justice, provide for common defense, promote the general welfare, and insure the benefits of liberty, imploring the aid of the Sovereign Legislator of the Universe for the attainment of these ends, have voted, decreed, and sanctioned the following: xxx Article 1. The political association of all Filipinos constitutes a nation, whose state shall be known as the Philippine Republic. Article 2. The Philippine Republic is free and independent.Article 3. Sovereignty resides exclusively in the people. Article 5. The State recognizes the freedom and equality of all religions, as well as the separation of the Church and the State. Article 6. The following are Filipinos: 1. All persons born in the Philippine territory. A vessel of Philippine registry is considered, for this purpose, as part of Philippine territory. 2. Children of a Filipino father or mother, although born outside of the Philippines. xxx Article 7. No Filipino or foreigner shall be detained nor imprisoned except for the commission of a crime and in accordance with law. Article 8. All persons detained shall be discharged or delivered to the judicial authority within 24 hours following the act of detention. All detentions shall be without legal effect, unless the arrested person is duly prosecuted within 72 hours after delivery to a competent court. The accused shall be duly notified of such proceeding within the same period. xxx Article 20. Neither shall any Filipino be deprived: 1. Of the right to freely express his ideas or opinions, orally or in writing, through the use of the press or other similar means. 2. Of the right of association for purposes of human life and which are not contrary to public morals; and lastly 3. Of the right to send petitions to the authorities, individually or collectively. xxx”
The foregoing however — codes and charters of the revolutionary era of 1896 to 1899 — are not being used in contemporary judicial discussions , except a mention of the Malolos Constitution in some cases.
Justice Malcolm provided a quick glance at the history of the Constitution: “Turning to the pages of history, we state nothing new when we set down that freedom of speech as cherished in democratic countries was unknown in the Philippine Islands before 1900. A prime cause for revolt was consequently ready made. Jose Rizal in “Filipinas Despues de Cien Años” (The Philippines a Century Hence, pages 62 et seq.) describing “the reforms sine quibus non,” which the Filipinos insist upon, said: “The minister, . . . who wants his reforms to be reforms, must begin by declaring the press in the Philippines free and by instituting Filipinos delegates.
“The Filipino patriots in Spain, through the columns of “La Solidaridad” and by other means invariably in exposing the wants of the Filipino people demanded “liberty of the press, of cults, and associations.” (See Mabini, La Revolucion Filipina.) The Malolos Constitution, the work of the Revolutionary Congress, in its Bill of Rights, zealously guarded freedom of speech and press and assembly and petition.
“Mention is made of the foregoing data only to deduce the proposition that a reform so sacred to the people of these Islands and won at so dear a cost, should now be protected and carried forward as one would protect and preserve the covenant of liberty itself.
“Next comes the period of American-Filipino cooperative effort. The Constitution of the United States and the State constitutions guarantee to the right of freedom of speech and press and the right of assembly and petition. We are therefore, not surprised to find President McKinley in that Magna Charta of Philippine Liberty, the Instructions to the Second Philippine Commission, of April 7, 1900, laying down the inviolable rule “That no law shall be passed abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the Government for a redress of grievances.”
“The Philippine Bill, the Act of Congress of July 1, 1902, and the Jones Law, the Act of Congress of August 29, 1916, in the nature of organic acts for the Philippines, continued this guaranty. The words quoted are not unfamiliar to students of Constitutional Law, for they are the counterpart of the first amendment to the Constitution of the United States, which the American people demanded before giving their approval to the Constitution.
“We mention the foregoing facts only to deduce the position never to be forgotten for an instant that the guaranties mentioned are part and parcel of the Organic Law — of the Constitution — of the Philippine Islands.
“These paragraphs found in the Philippine Bill of Rights are not threadbare verbiage. The language carries with all the applicable jurisprudence of great English and American Constitutional cases. (Kepner vs. U. S. [1904], 195 U. S., 100; Serra vs. Mortiga [1907], 204 U. S., 470.)” (Justice Malcolm, US vs. Bustos, G.R. No. L-12592 , March 8, 1918)

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Hierarchy of laws:
I.The Constitution
II.Statutes
III.Supreme Court decisions
BULLET POINTS (excerpts, Marbury v. Madison)
“If an act of the legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. …
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

“So if a law be in opposition to the Constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

“If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
xxx
“Could it be the intention of those who gave this power (judicial power) to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it rises?

“This is too extravagant to be maintained.

“In some cases then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?

“There are many other parts of the Constitution which serve to illustrate this subject.

“It is declared that “no tax or duty shall be laid on articles exported from any state.” Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the Constitution, and see only the law?

“The Constitution declares that “no bill of attainder or ex post facto law shall be passed.”

“If, however, such a bill should be passed and a person should be prosecuted under it; must the court condemn to death those victims who the Constitution endeavours to preserve?

“ “No person,” says the Constitution, “shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

“Here the language of the Constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

“From these, and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.

“Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support?

“The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: “I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as —, according to the best of my abilities and understanding agreeably to the Constitution and laws…”

“Why does a judge swear to discharge his duties agreeably to the Constitution … if that Constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him?

“If such be the real state of things, this is worse than solemn mockery. To prescribe, or take this oath, becomes equally a crime.

“It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws … generally, but those only which shall he made in pursuance of the Constitution, have that rank.

“Thus, the particular phraseology of the Constitution … confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument…” (Marbury v. Madison, supra)
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   Judicial Remedies when any constitutional or statutory right is violated (upon showing that a “clear legal right” had been violated) : SPECIAL CIVIL ACTIONS AND SPECIAL PROCEEDINGS (see discussion in class)

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ORIENTATION, LAW ON MASS MEDIA AND COMMUNICATION FIRST DAY OF CLASSES: PLS SUBMIT AVATAR & PUBLIC PROFILE ELECTRONICALLY #UNIVERSITYOFTHEPHILIPPINES #UPDILIMAN : Use nicknames only, or pseudonyms, or “aliases”, do not use your full names. (Deadline Jan. 24, Thursday, 12:59pm)
Happy new year, everyone!
We will discuss the “Intro to the Course” as embedded above. AFTER CLASSES, and up the next meeting, pls accomplish the following requirements, otherwise, you will not be allowed a seat in class next meeting until accomplishment of the following: Please submit your avatar and public profile electronically – failing which, you will be excused so you can submit the requirement. PLEASE USE YOUR NICKNAMES ONLY, OR PSEUDONYMS, OR PET NAMES, OR “ALIASES” (hopefully, they are not aliases from a criminal record:) ).
This is a public site and you are advised not to use your full names.
FOR THE FIRST DAY OF CLASSES: In order to have an organized flow of class discussion: Everyone is required to attend the orientation on the first day of classes – even those who have not completed their payment. Experience shows that those who fail to attend the orientation fail to be aware of the requirements and class policies, fail to get their topics for reporting (for 30 points) and end up DISRUPTING THE CLASS with their noisy cellphones, noisy inquiries, and abrupt behavior in trying to get out of the classroom to comply with the requirements. Students who show inability to comprehend words will be asked to drop the class before wreaking more havoc.
Students will always be held responsible for whatever they miss as a consequence of their being late or absent, and are requested not to harangue the handling faculty to be given special treatment by way of a “personalized briefing”, or update, or to get topics. Students who persist in refusing to comprehend words will be asked to drop the class.
The class record and class scorecards of this class are electronic (with one print copy as final backup).
My avatar and public profile are in this site, in the “About” widget. The widgets appear at the foot of the site; the “About” widget is eleventh, scroll down.
ADMINISTRATIVE MATTERS: As stated, the class records are electronic and will be based on scores arising from compliance with the requirements, to be centralized electronically in the department file. Pls submit electronically your avatar and public profile by embedding them or linking them in this site, in this post, in the comments section (you may post them earlier, before classes). You may use the computers in the department, or the computers in the classrooms, or the free and public computers in the corridors and lobby, or the free and public computers in the library, or your own devices (the college has a free, public wifi).
The avatar is your digital public photo. For this class, do not submit an image of a cartoon character or a computer-generated image unless you want to be considered a winged creature in class. Do not submit a microscopic, dot-size photo unless you want a dot score for all the requirements. Pls make your avatar at least the usual 1” x1”. Thank you.
The public profile is the public description of yourself, the profile that you use in your public sites. Use your nicknames only, do not submit your full names in this site.
In your public profile, pls type as heading the designation of the class you are enrolled in (J101, or Ethics, or Media Law, or Grad Sch) — this will make the work of the department easier.
Then, pls include the following information in your “description”:
1.your course;
2.your favorite book or novel of all time (and state why);
3.your favorite film of all time (and state why);
4.your favorite media practitioner of all time (any medium: newspaper, broadcast, multimedia, film, social media, etc), (and state why);
5.your favorite song/ music/ band/ songwriter of all time (and state why);
6.your favorite meal of all time (and state why).
7.”hobbies”, if any (optional).
Those who do not have these will be asked to show or perform their own original composition in class as a description of themselves.
There are several ways of producing your public profile:
1.Thru your own public site (thru free sites such as FB, Twitter, tumblr, wordpress, blogspot, etc)
2.or thru Gravatar (a free app/site),
3.or thru about.com (another free site/app)
(although there is nothing absolutely free in the internet: advertisers buy your info, so just use your nicknames, not your full names.)
If you’re using Gravatar or about.com, the app automatically shows your avatar anywhere you post in the net, and in the comments section of this site, so you won’t have to embed, separately, your photo.
There are two ways of submitting them in the comments section of this post: 1.By embedding, as in-line text; or 2.by linking the url of your own site (pasting the url of your site in the comments section). Simply click the comments box at the end of this post, then type: you may embed your public profile and avatar, or paste the link to your site where your public profile and avatar appear.
If you are a recluse, or have zero presence in the internet, you may get the class email address from the department and email the requirement. You will need to FOLLOW UP the department to submit it to the handling faculty – the disadvantage of this procedure is — as experience shows – this takes more administrative steps; any delay will be counted against the student for failure to follow up efficiently.
A one-pager directory will be routed manually (print) in class where the student will be asked to write their email address and “name of person to contact in case of emergency” and that person’s contact info. This document is confidential and no one is allowed to borrow or to photocopy it.
Those who fail to submit an avatar and public profile will not be allotted an electronic classcard and will not appear in the electronic class record. Those who are not allotted a classcard and do not appear in the class record will be considered a fictitious character. Their grade will be posted by  Kardo, “Ang Probinsyano”.

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