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 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.
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.