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NATIONAL SECURITY LAW

Ateneo de Zamboanga University - College of Law


in partnership with
San Beda University - Graduate School of Law
Master of Laws (LL.M) Program
S.Y. 2018-2019

Atty. Jose Martin A. Loon, LL.M.,


Georgetown, National Security Law

Overview: This course will tackle International and Domestic laws that
create our National Security structure. In this survey, students will re-
examine the laws, executive orders, and jurisprudence that serve as the
documents that protect our sovereignty, people, government, and
territory. Students are also expected to understand current and
evolving threats to Philippine National Security as well as have an
exposure to our vulnerabilities in Cyber Security and National Disaster
Preparedness.

The instructor may call for graded recitation in order to facilitate


a free exchange of ideas about policy and theory.

Students are expected to submit a short paper upon the 3rd


meeting on pre-decided topics and queries. A Final Paper after the
course has been concluded shall compose the final exam. The approach
of these papers shall be exploratory and/or argumentative. The
exposition and arguments should be based on law and facts.

Grading/Requirements: Graded Recitation - 30%, Short Paper - 30%,


Final Paper 40% - Subject to change at the discretion of instructor.

Schedule: Saturday 8 – 5pm, with additional meetings to be


announced.

Rules: The instructor may lecture or may give individual or group


activities for the day which require an output. Recitation will be at
random. Take home assignments should be expected. Submission of
papers shall be by physical copy and/or online submission, depending
on the instructor. Plagiarism will not be tolerated. The Academic Rules
of the Graduate School of Law will be enforced.
Contact: email ___________
WEEK ONE – AUG 11, 2018
NATIONAL SECURITY IN THE DECLARATION OF STATE
PRINCIPLES AND POLICIES

1987 Philippine Constitution, Art. II Sec. 2 – Renouncing War

Aggressive War versus Defensive War

Definitions of Aggressive War/Aggression:


U.N. Charter Article 2, paragraph 4
General Assembly Resolution 3314
Rome Statute of the International Criminal Court
Customary International Law

Independent Foreign Policy


Art. II Sec. 7
1. Bayan v. Executive Secretary, 2000 – Visiting Forces Agreement
2. Lim v. Executive Secretary, 2002 – Balikatan Exercises

Freedom from Nuclear Weapons


Art. II Sec. 8

CIVILIAN SUPREMACY OVER MILITARY

Phil. Consti Art. II Sec. 3 – Civilian Supremacy & Goals of the Military
Art. VII Sec. 18 – President is Commander-in-Chief
Art. XVI Sec. 5 (1-7) – Military limits and duties
Art. XVI Sec. 6 – Police Force must be civilian in Character
1. Carpio v. Executive Secretary, 1992

Duty of Government; People to Defend the State


Art. II Sec. 4 & 5 – may the ROTC be reestablished?

Right to Bear Arms


Chavez v. Romulo, 2004 – Only Statutory, not constitutional, subject to
limits

NATIONAL TERRITORY

Article I – National Territory, 1987 Philippine Constitution


R.A. 3046 “Baseline Law” amended by R.A. 9522
UNCLOS Articles 46-54
1. Magallona v. Ermita, 2011 - What is the Archipelagic Doctrine?
Has the baseline law reduced our territory?
2. In the Matter of South China Sea Arbitration, PCA Case No. 2013-
19, July 12, 2016.

WEEK TWO

LEGISLATIVE POWERS

Declaration of the Existence of State of War and Delegation of


Emergency Powers
Art. VI. Sec. 23 (1) & (2)
1. David v. Macapagal Arroyo, 2006 - President alone can declare
state of emergency, but Congress needs to delegate emergency
powers.

EXECUTIVE POWERS

Art. VII, Sec. 1 – Executive Power is vested in the President

1. Carpio v. Executive Secretary, 1992 – Power of Control


2. Marcos v. Manglapus, 1989 – Residual Powers
3. Province of North Cotabato v. GRP, 2008 – Power of the President
to explore all possibilities of Conflict Resolution.

Emergency Powers
1. Lansang v. Garcia – Suspension of the Privilege of the Writ of
Habeas Corpus
2. David v. Arroyo, 2006 – Calling Out Power, Take Care Power (Can
Military implement law? No, merely suppress lawless violence).

Commander-in-Chief Powers

1. IBP. V. Zamora, 2000 – Calling out powers.


2. Ampatuan v. Puno, 2011 – Deployment (Calling out) not an
emergency power.
3. Sanlakas v. Executive Secreatry, 2004 – “Declaration of an existence
of a state of rebellion”
4. Fortun v. Macapagal Arroyo, 2012 – Graduated powers, president
may declare martial law locally only, need not exercise calling out
powers first.
5. Olaguer v. military Commission, 1987 – Military Courts cannot try
civilians when civil courts are functioning

Martial Law

Article VII, Sec. 6


1. Lagman v. Medialdea, 2017 – Sufficiency of Factual Basis Test

Take Over Power

Article XVII Sex. 17 versus 18.

THE ARMED FORCES OF THE PHILIPPINES

R.A. 7077

AFP Modernization
R.A. 7898 as amended by R.A. 10349

INTELLIGENCE

Book Chapter: Philippine Intelligence Community: A Case for


Transparency, In book: Security Sector Reform: Modern Defense Force
Philippines, Chapter: 8, Publisher: Ateneo De Manila University Press,
Editors: Jennifer Oreta and Kathline Tolosa, pp.76-86
Available at
https://www.researchgate.net/publication/274897415_Philippine_Int
elligence_Community_A_Case_for_Transparency

TERRORISM

Human Security Act (R.A. 9372)


Brent H. Lyew, An Examination of the Philippines' Anti-Terror Law -
Suaviter in Modo, Fortiter in Re, 19 Pac. Rim L. & Pol'y J. 187 (2010)

SHORT PAPER – Instructor may require 3 questions to be


answered.
Possible Questions: Deadline is 3rd Meeting.

1. Is our current shift in foreign policy alliance to China better


for National Security in General considering transnational
crime from the mainland and involvement of the drug trade
by its nationals? Expound.
2. Is the ‘national’ character of our police force truly a deterrent
to warlordism? Or is it illusory? Explain.
3. Is the possible revival of a mandatory ROTC or military
reservist program a true positive for National Security? Doe
the pros outweigh the cons?
4. Will the enforcement of the South China Sea Arbitral award
ensure better border security or aggravate it? Why?
5. Is the declaration of Martial Law a more effective National
Security Strategy than merely exercising calling out powers?
Why?
6. After studying the AFP modernization law and plant, do
you agree with the direction it tries to take? Why or why
not?

WEEK THREE

REVISED PENAL CODE

Crimes Against National Security and the Law of Nations


Differentiate:
Piracy in the RPC and Piracy in P.D. 532

Crimes Against Public Order


Differentiate:
Rebellion, Insurrection, and Coup D’etat

INTERNATIONAL HUMANITARIAN LAW - R.A. 9851

IHL Law – Chapter III


Differentiate Crimes against International Humanitarian Law,
Genocide, and Crimes Against Humanity.

IHL Law - Chapter V – Some Principles on Criminal Liability

Command Responsibility
1. Rubrico v. Arroyo, 2010
2. Balao v. Arroyo, 2011

PHILIPPINE COAST GUARD

1. Republic Act No. 5173


2. Jay Tristan Tarriela, The Diplomat. "Why the Philippines Needs to
Develop Its Coast Guard." The Diplomat, 20 Dec. 2017,
thediplomat.com/2017/12/why-the-philippines-needs-to-develop-its-
coast-guard/.
WEEK FOUR
CYBERSECURITY

1. Hutchinson, William K, and Mat Warren. Information Warfare:


Corporate Attack and Defence in Digital World. 2017.
2. ACS - The Professional Association for Australia's ICT Sector,
www.acs.org.au/content/dam/acs/acs-
publications/ACS_Cybersecurity_Guide.pdf.
3. Bullock, Jane A, et al. Introduction to Homeland Security: Principles of
All-Hazards Risk Management. Butterworth-Heinemann, 2013.
4. Welcome to the Department of Justice - Republic of the Philippines
www.doj.gov.ph/files/cybercrime_office/2014-
2015_Annual_Cybercrime_Report.pdf.
5. Symantec - Global Leader In Next-Generation Cyber Security | Symantec,
www.symantec.com/content/dam/symantec/docs/reports/istr-21-
2016-en.pdf.
6. By Jojo Malig, ABS-CBNnews.com. "Global 'Anonymous' Attack
Philippine Gov't Websites." ABS-CBN News, 3 Oct. 2012, news.abs-
cbn.com/lifestyle/10/02/12/global-anonymous-attack-philippine-
govt-websites.
7. 68 Gov't Websites Attacked | Philstar.com." Philstar.com, 16 July 2016,
www.philstar.com/headlines/2016/07/16/1603250/68-govt-
websites-attacked.
8. National Cybersecurity Plan of 2022.
9. Republic Act No. 10175 Cybercrime Prevention Act of 2012
10. Republic Act No. 8792 E-commerce Act of 2000
11. Data Privacy Act of 2012 (R.A. No. 10173)
12. Anti-Wiretapping Law (R.A. No. 4200)
13. Council of Europe, Convention on Cybercrime, Article 22, European
Treaty Series - No. 185. Available at http://rm.coe.int/1680081561
(last visited May 30, 2018)

NATURAL DISASTER PREPAREDNESS

1. Republic Act No. 10121 Philippine Disaster Risk Reduction and


Management Act
2. COA, Disaster Management Practices In The Philippines: An Assessment,
WWW.COA.GOV.PH,
https://www.coa.gov.ph/disaster_audit/doc/National.pdf
3. NDRRMC, National Disaster Risk Reduction and Management Plan
(NDRRMP) 2011-2028, WWW.NDRRMC.GOV.PH,
http://www.ndrrmc.gov.ph/attachments/article/41/NDRRM_Plan_
2011-2028.pdf
4. Andreo Calonzo, Tacloban mayor: No help from national govt in Yolanda’s
aftermath, GMA NEWS ONLINE, By ANDREO C. CALONZO, GMA
News. "Tacloban Mayor: No Help from National Govt in Yolanda's
Aftermath." GMA News Online,
www.gmanetwork.com/news/news/nation/338947/tacloban-mayor-
no-help-from-national-govt-in-yolanda-s-aftermath/story.
5. Debarati Guha-Sapir et al., Annual Disaster Statistical Review 2015: The
Numbers and Trends, available at
http://cred.be/sites/default/files/ADSR_2015.pdf (last accessed April 29,
2018)
6. International Strategy for Disaster Reduction, G.A. Res. 60, U.N. Doc.
A/RES/60/195

FINAL PAPER: Instructor may allow student to pick one or


require all to be answered.

1. Aside from Commander-in-Chief and Emergency


Powers, the President possesses Residual Powers. Are
Residual Powers enough legal grounds to respond to
unanticipated National Security Threats like Cyber
Attack and Natural Disasters? Or must the President
follow legislation by Congress? Explain.
2. What is the state of our Cyber Infrastructure’s Security
in Public and Private Sector? In the event of a Cyber
Attack do we have enough basis in domestic or
International Law to exercise Self-Defense? How? If
not, draft a short legal framework that will do so.
3. What is the status of our Natural Disaster
Preparedness today? How may the law improve
streamlining and simplifying it for better response?