What is International Humanitarian Law (IHL)

That branch of Public International Law which governs armed conflicts to the end that the use of
violence is limited and that human suffering is mitigated or reduced by limiting the means of military
operations and by protecting persons who do not or no longer participate in the hostilities.
This used to be referred to as "The Laws of War". The cornerstone of IHL is the Principle of
Distinction. Under this principle, persons engaged in armed conflicts must, at all times, distinguish
between civilians and combatants and between civilian objects and military objectives.
The 6 principal legal instruments of IHL are: The Four Geneva Conventions of 1949, and the Two
Additional Protocols of 1977.
Following the Principle of Distinction, "Combatants" are those directly engaged in the armed conflicts
like members of the regular armed forces, members of the irregular forces (guerillas and militias), the
levee en masse, officers and crew of merchant marine vessels who forcibly resist attack.
Combatants when captured, should be treated as Prisoners of War (POWs), who have rights under
IHL.
However, there are combatants who are non-privileged, like spies, saboteurs, mercenaries (soldiers
for a fee). They are non-privileged, because when captured they should not be entitled to be treated
as Prisoners of War although they have that minimum right to a hearing.

The Power of Augmentation

General Rule: No law shall be passed authorizing any transfer of appropriations. (Sec. 25[5], Art. VI,
1987 Constitution)
Exception: The President, the Senate President, the Speaker of the House of Representatives, the
Chief Justice, and the Heads of Constitutional Commissions may, by law, be authorized to augment
any item in the general appropriations law for their respective offices from savings in other items of
their respective appropriations. (Sec. 5[5], Art. VI, 1987 Constitution)
Cross-border transfer of funds is not allowed. Example: Savings from any of the executive offices
(like the Office of the President) may not be transferred to augment appropriations for any of the
Constitutional Commissions, like the Commission on Audit (COA) or the Civil Service Commission
(CSC). This is known as the cross-border transfer of funds which is prohibited.

This is one reason why the Disbursement Acceleration Program (DAP) was declared unconstitutional
by the SC. There was an unauthorized cross-border transfer of funds.

The Right against Self-incrimination

If an accused is already covered by an immunity statute, may he still validly refuse to testify invoking
his right against self-incrimination?
No. That is the very purpose of an immunity statute - the accused is granted some kind of immunity
in exchange for his testimony so that even if in the course of his testimony he might incriminate
himself, no harm can come upon him anymore.
Immunity statutes are of two types, i.e., transactional immunity and the use-and-derivative- used
immunity but the first is broader in the scope of its protection.
By its grant, a witness can no longer be prosecuted for any offense whatsoever arising out of the act
or transaction. In contrast, by the grant of use-and-derivative-use immunity, a witness is only assured
that his or her particular testimony and evidence derived from it will not be used against him or her in
a subsequent prosecution.
Immunity statutes should be construed liberally in favor of the accused and strictly against the state
as it is not a bonanza from the government. Those who have been granted immunity paid a high
price for it the surrender of their precious right to remain silent. (Mapa, Jr. v. Sandiganbayan, 231
SCRA 783, 1994, En Banc [Puno])

The Doctrine of Overbreadth

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state
regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby
invading the area of protected freedoms.
Should the provision of the Cybercrime Prevention Act of 2012 (R.A. 10175) penalizing Data
Interference (the intentional or reckless alteration, damaging, deletion or deterioration of computer
data, electronic document, or electronic data message, without right, including the introduction or
transmission of viruses) be declared unconstitutional applying the overbreadth doctrine, as it intrudes
into the area of protected speech and expression, creating a chilling and deterrent effect on these
guaranteed freedoms?
No. The provision does not encroach on these freedoms at all. It simply punishes what essentially is
a form of vandalism, the act of willfully destroying without right the things that belong to others, in this

case their computer data, electronic document, or electronic data message. Such act has no
connection to guaranteed freedoms. There is no freedom to destroy other peoples computer
systems and private documents.
All penal laws, like the cybercrime law, have an inherent chilling effect, an in terrorem effect or the
fear of possible prosecution that hangs on the heads of citizens who are minded to step beyond the
boundaries of what is proper. But to prevent the State from legislating criminal laws because they
instill such kind of fear is to render the State powerless in addressing and penalizing socially harmful
conduct. Here, the chilling effect that results in paralysis is an illusion since the provision clearly
describes the evil that it seeks to punish and creates no tendency to intimidate the free exercise of
ones constitutional rights.
Besides, the overbreadth doctrine places on petitioners the heavy burden of proving that under no
set of circumstances will the provision will be valid. (Disini, Jr., et al. v. The Secretary of Justice, G.R.
No. 203335, Feb. 11, 2014, En Banc [Abad])

The Strict Scrutiny Standard

The Court has found the strict scrutiny standard, an American constitutional construct, useful in
determining the constitutionality of laws that tend to target a class of things or persons. According to
this standard, a legislative classification that impermissibly interferes with the exercise of
fundamental rights or operates to the peculiar class disadvantage of a suspect class s presumed
unconstitutional. The burden is on the government to prove that the classification is necessary to
achieve a compelling state interest and that it is the least restrictive means to protect such interest.
Later, the strict scrutiny standard was used to assess the validity of laws dealing with the regulation
of speech, gender, or race as well as others fundamental rights, as expansion from its earlier
applications to equal protection. (Disini, Jr., et al. v. The Secretary of Justice, G.R. No. 203335, Feb.
11, 2014, En Banc [Abad])
From the above, it is clear that the strict scrutiny standard is employed by the Court to test the validity
of laws that are alleged to have violated the equal protection clause guaranteed by the Bill of Right
although later its application was expanded to apply as well to assess the validity of laws dealing with
the regulation of speech, gender, or race as well as other fundamental rights.
In the Disini case cited above (involving the challenge to the provision of the Cybercrime Prevention
Act of 2012 [R.A 10175] penalizing illegal access to computer systems), the Court did not apply this
standard since no fundamental freedom like speech is involved in punishing what is essentially a
condemnable act accessing the computer system of another without right.
In that same case, the Court has an occasion to clarify also that the Cybercrime law will not
jeopardize the work of ethical hackers (those who employ tools and techniques used by criminal

hackers but would neither damage the target systems nor steal; information).
----What is a get out of jail free card?
It is a stipulation in an agreement between a client and an ethical hacker defining the extent of the
search, the methods to be used, and the system to be tested by the latter. (Disini, Jr., et al. v. The
Secretary of Justice, G.R. No. 203335, Feb. 11, 2014, En Banc [Abad])

The Rule-Making Power of the Supreme Court (Sec. 5[5], Art. VIII, 1987 Constitution)
Among the powers of the Supreme Court is the power to promulgate rules concerning the protection
and enforcement of constitutional rights, pleading, practice, and procedure in all courts, admission to
the practice of law, the integrated bar, and legal assistance to the underprivileged.
Considering that the GSIS, under its Charter (Sec. 39 of RA 8291), is exempt from all taxes,
assessments, fees, charges or duties of all kinds, is it also exempt from the payment of legal fees?
No. The provision in its Charter exempting the GSIS from all taxes, assessments, fees, charges or
duties of all kinds cannot operate to exempt it from the payment of legal fees. This was because,
unlike the 1935 and 1973 Constitutions, which empowered Congress to repeal, alter or supplement
the rules of the Supreme Court concerning pleading, practice and procedure, the 1987 Constitution
removed this power from Congress. Hence, the Supreme Court now has the sole authority to
promulgate rules concerning pleading, practice and procedure in all courts. Any exemption from the
payment of legal fees granted by the Congress to government-owned or controlled corporations
(GOCCs) and local government units (LGUs) will necessarily reduce the Judiciary Development
Fund (JDF) and the SAJF. Undoubtedly, such situation is constitutionally infirm for it impairs the
Courts guaranteed fiscal autonomy and erodes its independence. (GSIS v. Heirs of Fernando P.
Caballero, 632 SCRA 5 [2010])

Doctrine of State Immunity from Suit

When is a suit against a public officer deemed to be a suit against the State itself and, therefore,
should be dismissed invoking State immunity from suit?
General Rule: The Doctrine of State Immunity from Suit applies to complaints filed against public
officers in the performance of their duties. This is because, in such a case, the public officer merely
acts as an agent of the State and. Therefore, his acts are deemed to be the acts of the principal
itself, the State, following the principle of agency.

Exceptions: This rule will not apply if the public officer is charged in his official capacity for acts that
are unlawful and injurious of the rights of others. Public officers are not exempt in their personal
capacity from liability arising from acts committed in bad faith.
Neither does the rule apply where the public officer is charged in his personal capacity, not in his
official capacity, although the act complained of was committed while he occupied a public position.
(Lansang v. CA)

Prohibition against the Payment of Additional, Double or Indirect Compensation

Sec. 8, Art. IX-B of the 1987 Constitution provides that no elective or appointive public officer or
employee shall receive additional, double or indirect compensation, unless specifically authorized by
law, nor accept without the consent of the Congress, any present, emolument, office or title of any
kind from any foreign government.
Pensions and gratuities shall not be considered as additional, double or indirect compensation.
Does the payment of monthly Representation and Transportation Allowance (RATA) to certain
officers of Government-Owned or Controlled Corporations (GOCCs) constitute additional, double or
indirect compensation prohibited by the Constitution?
No. RATA is distinct from salary as a form of compensation. Unlike salary which is paid for services
rendered, RATA is a form of allowance intended to defray expenses deemed unavoidable in the
discharge of office. Hence, RATA is paid only to certain officials who, by the nature of their offices,
incur representation and transportation expenses. Indeed, aside from the RATA that they have been
receiving, the grant of RATA for every board meeting they attended, in their capacity as members of
the Board of Directors of the GOCC, in addition to their per diems, does not violate the constitutional
proscription against double compensation (Singson v. COA, 627 SCRA 36 [2010])

Republic Act 9189 (The Absentee Voters Act of 2003)

Under this law, overseas Filipinos, permanent residents in a foreign country, may be allowed to
register and vote before our embassies and consulates abroad, for President, Vice President,
Senators, and Party-list Representatives provided that, before they register, they will have to execute
an affidavit stating therein that within 3 years after such registration, they will return to the Philippines
and resume their residence in the country.
In Makalintal v Comelec, the Court held that this is now the exception to the residence qualification of
a voter under Section 1, Article V (Suffrage) of the 1987 Constitution. There is a clear intent on the

part of the framers of the 1987 Constitution to enfranchise as many overseas Filipinos in recognition
of their tremendous contributions to the national economy. It is but fair that their voices should be
heard on who should be our leaders.

The Public Assembly Act (BP 880)

It is the law that regulates the holding of rallies, demonstrations and public assemblies. Obviously, it
is enacted pursuant to the police power of the state. Under this law, if one will hold a rally or public
assembly, one must first secure permit from the local authorities. However, there are instances when
one may hold a rally without permit from the local authorities, as:
If the rally is to be held in a private place (only consent of the owner is needed);
If the rally is to be held in the campus of a state university or college; and
If the rally is to be held in a freedom park. For this matter all cities and municipalities are mandated
to establish/designate a freedom park where one may hold a rally even without permit from the local
authorities.
Political rallies during the campaign period are governed by the Omnibus Election Code (BP 881),
not the Public Assembly Act.
Under BP 880, if within 48 hours from the application of a permit to hold a rally, no acton was taken
by the local authorities, the permit is deemed granted.
If the local authority refuses to issue the permit, or if he wants to change the venue, he is required to
state the reason for such refusal, or change of venue, to the applicant. The only ground for the local
authority to validly refuse to issue the permit, or change the venue, is that there is a clear and
present danger of a substantive evil that the state has the right or duty to prevent or suppress if the
permit is to be granted, such as imminent public disorder or violence.
Be reminded that any act of government that tends to impair public assembly, freedom of expression
and other fundamental freedoms, comes to the Court with a heavy presumption of
unconstitutionality. In Reyes v Bagatsing, the Court held that it is not for the applicant to guarantee
that the rally will be peaceful, but for the mayor who refuses to issue the permit to justify his refusal,
as his act of refusal comes to the court with a heavy presumption of unconstitutionality.
The local authority may not validly refuse to issue the permit, or change the venue of the rally,
without informing the applicant of the reason for the refusal to issue the permit or change the venue
of the rally. To do so without informing the applicant, would constitute grave abuse of discretion on
his part. (IBP v Mayor Atienza)

BP 880 is merely a content-neutral regulation. It does not prohibit the holding of rallies or public
assemblies; it merely regulates. (Bayan v Exec. Sec. Ermita)
The Calibrated Pre-emptive Response (CPR) policy adopted by the Arroyo administration in dealing
with rallies or public assemblies which, according to Exec. Sec. Ermita simply means the strict
implementation of the "no permit, no rally rule," is a superfluity if it means no more than "maximum
tolerance" defined by BP 880, as it will only confuse people. However, if it means more than
"maximum tolerance" as defined by BP 880, then it is unconstitutional, as it violates freedom of
expression. (Bayan v Exec. Sec. Ermita)
"Maximum tolerance" means the highest degree of restraint that the police, the law enforcement
officers and the military must observe in dealing with rallies or public assemblies, or in the dispersals
thereof, so that under this rule, for as long as the demonstrators are unarmed or they do not exhibit
overt acts of violence, although they tend to be unruly, or their speeches show to be incendiary,
provocative, inflammatory, that is not enough justification for the dispersal of the rally or for the arrest
of the demonstrators. Obviously the Public Assembly Act (BP 880) adheres to the clear and present
danger rule.

Jus Cogens Norm (Compelling law)

A peremptory (mandatory) norm of general international law which is recognized and accepted by
the international community of States as a norm that does not permit of any derogation, and which
can be replaced or modified only by a subsequent norm of general international law of the same
character.
Examples: the prohibition against the use of force under the UN charter, the law on genocide, the
right to self-determination of peoples.
Under the Vienna Convention on the Law of Treaties, a treaty that violates a Jus Cogens norm
should be inviolated.
Erga Omnes Obligation
An obligation of a state towards the international community of states as a whole.
Between an erga omnes obligation and the obligation of a state towards another state pursuant to a
treaty, an erga omnes obligation is superior.
Once it is established that it is a jus cogens norm, then it becomes an erga omnes obligation of a
State.

Example: The law on genocide is an established jus cogens norm, therefore, it becomes an erga
omnes obligation of a State not to commit genocide, or not to allow genocide to be committed
anywhere.
These two are developments in international law which evolved only after World War 2. That's why in
the case of Vinuya v Exec. Sec. Romulo (the case involving the "comfort women" in the Philippines
during World War 2) the Supreme Court did not agree that the duty of the State to espouse the
claims of its national against a foreign state has already evolved into a jus cogens norm and
therefore, has become an erga omnes obligation.
In that same ruling, the Court further clarified that even the International Law Commission (ILC)
concluded in 1963 that there is not as yet any generally accepted criterion by which to identify a
general rule of international law as having the character of jus cogens.

The Rome Statute

It is a multilateral treaty that established/created the International Criminal Court (ICC). The
Philippines is the 117th State that ratified this Rome Statute. It is called a statute because it created
a tribunal, according to Dean Raul Pangalangan of UP Law.
The offenses falling under the jurisdiction of this ICC are; genocide, crimes against humanity, war
crimes and the crime of aggression.
The Principle of Complementarity is an important principle. It states that the ICC shall be
complementary to national criminal jurisdiction. It gives primacy to national courts, meaning to say
that if the court of one State already assumed jurisdiction over a person accused of having
committed any of the four offenses, the ICC will no longer assume jurisdiction. Exceptions: first, If the
proceeding in the national court is conducted to protect the accused from liability; or second, if it is
not conducted independently or impartially, in which case, the ICC may still assume jurisdiction.

Administrative Jurisidction of the Ombudsman:

Under RA 6770 (The Ombudsman Act of 1989), the Ombudsman has administrative disciplinary
authority over all public offices and employees, whether elective or appointive, national or local,
except only with respect to the impeachable officers, the members of Congress, and the members of
the Judiciary. Hence, a public officer may be charged administratively before the Office of the
Ombudsman.

From the decision of the Ombudsman in an administrative case, appeal goes to the Court of
Appeals. Section 27 of RA 6770 providing for direct appeal to the Supreme court from the decision of
the Ombudsman in an administrative case had already been declared unconstitutional by the
Supreme Court. (Fabian v Ombudsman Desierto)
In the exercise of his administrative jurisdiction, the Ombudsman or his Deputies may impose
preventive suspension. The maximum duration of the preventive suspension under RA 6770 is 6
months.
The Ombudsman has no authority whatsoever to impose preventive suspension in a criminal case;
only the court where the criminal information was filed may impose preventive suspension in a
criminal case. (Section 13, RA 3019, as amended)

Limitation on the term of office of Elective Local Officials (Section 8, Article X, 1987 Constitution).
The term of office of local elective officials, except barangay officials which shall be determined by
law, shall be 3 years and no such official shall serve for more than 3 consecutive terms.
Renunciation of office for any length of time shall not be considered an interruption in the continuity
of the service for the full term for which he was elected.
For this provision to apply, 2 conditions must concur: first, that the local official concerned must have
been elected for 3 consecutive terms to the same office, and second, that he was able to fully serve
3 consecutive terms. Absent 1 or both of these conditions, the disqualification may not yet apply.
(Borja jr. v Comelec)
There are 2 policies embodied in this Constitutional provision: first, to prevent the establishment of
political dynasties and, second, to enhance the freedom of choice of the people. (Borja jr. v
Comelec)
Service of the recall term, since it is less than 3 years, is not to be considered as one full term for the
purpose of applying the disqualification under Section 8, Article X of the 1987 Constitution.
(Mendoza v Comelec, December 17, 2002)
To constitute an interruption in the continuity of service it must involve loss of title to the office; mere
inability to perform the functions appurtenant to the office however short, is not an interruption. When
one is placed under preventive suspension, he still remains to be mayor although in the meantime he
may not be able to perform the functions appurtenant to the office because of a legal prohibition,
thus, he still remains to be mayor; hence the vice mayor will assume office not as mayor but merely
as acting mayor. There is no interruption of his term as mayor. (Aldovino jr. v Comelec)

When during his 2nd term as kagawad, sangguniang bayan, he assumed office as vice mayor due to
the retirement of the vice mayor, that is not equivalent to voluntary renunciation of office and
therefore constitutes an interruption in the continuity of service as kagawad, sangguniang bayan, that
made him qualified to run again as kagawad, sangguniang bayan, for the fourth time. (Montebon v
Comelec)

Recent issue: The President is requesting for emergency powers to address the acute power
shortage that the country may experience in the coming years.
Constitutional provision to consider (Section 23 (2), Article VI, 1987 Constitution)
Comment on the provision: The President may not validly exercise emergency powers motu proprio.
There must be a law enacted by Congress authorizing the President to exercise emergency powers.
Requisites for Congress to validly delegate emergency powers to the President:
1. There must be war or other national emergency;
2. The delegation must be for a limited period only;
3. It is always subject to such restrictions as Congress may prescribe; and
4. It must be pursuant to a declared national policy.
If Congress will delegate emergency power to the President, a law is required for the purpose.
However, if Congress would like to withdraw or revoke the delegated emergency power to the
President, another law is no longer required; a mere resolution from Congress will suffice.

I - Two views on the effect of declaration of unconstitutionality of a law:

1. Orthodox view - An unconstitutional law is no law at all. It creates no office, it creates no rights, it
creates no obligation, it is not a source of protection. It is stricken out of the statute books.
It is treated as if it was never enacted at all.
2. Modern view (Operative Fact doctrine) - An unconstitutional law is not stricken out of the statute
books. It remains there but the court refuses to recognize it. This is because, before it is declared
unconstitutional, it enjoys the presumption of constitutionality. At that time, there may be parties who
relied on the provisions of that law. As to them it remains to be valid. This is an operative fact that
cannot be denied. Because of this, the declaration of unconstitutionality is not given retroactive
effect. It is always given prospective application.

II - Requisites before foreign military bases, troops, or facilities may be allowed in the Philippines
(Section 25, Article XVIII, 1987 Constitution) like the Visiting Forces Agreement (VFA) with the US.
General Rule: No foreign military bases, troops, or facilities may be allowed in the Philippines.
Exception: They may be allowed provided that:
1. There must be a treaty duly concurred in by the Senate;
2. When Congress so requires, the treaty must be ratified by majority of the votes cast by the people
in a national referendum held for that purpose; and
3. The treaty must be recognized also as a treaty by the other contracting State.
Section 25, Article XVIII, 1987 Constitution, is a special provision that applies to treaties involving the
presence of foreign military bases, troops, or facilities in the Philippines, like the VFA. Whereas
Section 21, Article VII, 1987 Constitution, is a general provision that applies to all kinds of treaties
entered into by the Philippines, regardless of subject matter, title or designation. (Bayan v. Zamora)
All "Balikatan" Exercises held in several parts of the Philippines are held under the auspices of the
VFA.