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2014 Bar Political Law Tips Atty.

Edwin Sandoval
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 nonprivileged, 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 crossborder 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 selfincrimination?
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
additional, double or indirect compensation.

considered

as

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 Jurisdiction 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
powers.

authorizing

the

President

to

exercise

emergency

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.

The EPIRA law obviously has limited application which deals with
the regulation of the electric power industry. You must be referring
to Section 71 of the EPIRA law which will require joint
congressional resolution to establish additional supply of electric
power. What the President is requesting here is emergency power
in general governed by Section 23 (2), Article VI of the 1987
Constitution.

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.