University of San Carlos (Usc) School of Law & Governance College of Law

UNIVERSITY OF SAN CARLOS (USC)
SCHOOL OF LAW & GOVERNANCE

COLLEGE OF LAW
Cebu City
SPECIAL ISSUES IN PUBLIC INTERNATIONAL LAW
Class Activity No. 04

March 13, 2021 Atty. Daryl Bretch M. Largo
CASE PROBLEM
State P is a democratic and republican state. Its Constitution guarantees

fundamental freedoms similar to that of the United States of America, including Freedom
of Expression, Communication and the Right to Privacy. State P’s Constitution also
declares that the generally accepted principles of international law shall form part of the
law of the land. It maintains very good relationship with its neighboring countries such as
Japan and Australia and had entered into Mutual Intelligence Sharing Agreements (MISAs)
with them which were geared toward the development of technologies allowing access to
much global internet traffic, calling records in Japan, Australia and State P, individuals’
electronic address books and huge volumes of other digital communications content. These
technologies have reportedly been deployed through a transnational network comprising
strategic intelligence relationships between Governments, regulatory control of private
companies and commercial contracts.
State P has just elected a new President, D, whose campaign slogan was to eliminate
the illegal drug menace in State P in three to six months. In order to enable the newly-
elected President to combat the illegal drug syndicates in State P, which, according to the
President, had remained “untouchables” because of their connections with high-ranking
government officials, the Legislature enacted a new law called Fight Against Crime Act
(FACA) of 2016.
The FACA of 2016 extended the powers of the National Bureau of Investigation
(NBI) and the P Drug Enforcement Agency (PDEA) with regards to recording of
telecommunications in the course of the so-called “strategic” and “individual” monitoring
as well as the use of personal data obtained thereby and their transmission to other
authorities.
Strategic monitoring is aimed at collecting information by intercepting

telecommunications in order to identify and avert serious dangers facing State P, such as
illegal importation of drugs, an armed attack on its territory or the commission of
international terrorist attacks and certain other serious offences. In contrast, the so-called
individual monitoring, that is, the interception of telecommunications of specific persons,
serves to avert or investigate certain grave offenses which the persons monitored are
suspected of planning or having committed.
Sections 1 and 2 of the FACA of 2016 authorized the monitoring of wireless

telecommunications, that is, telecommunications which were not effected via fixed
telephone lines, but, for example, via satellite connections. Section 3(1), first sentence, of
the Act provided that restrictions on the secrecy of telecommunications could be ordered
by the Secretary of Justice with the approval of the Congressional Supervisory Board
(CSB), on an application by the NBI or the PDEA, for international wireless
telecommunications. Under the second sentence of that provision, such restrictions were
permitted only in order to collect information about which knowledge was necessary for
the timely identification and avoidance of certain dangers, namely: (1) illegal importation
or trafficking of drugs and related activities within the meaning of the Dangerous Drugs
Act, (2) an armed attack on State P, and (3) the commission of international terrorist attacks
in State P.
Senator D, a former Secretary of Justice of State P, had been suspected of being a

“protector” of a big drug syndicate in State P’s State Penitentiary, especially during her
time as Secretary of Justice. State P’s state penitentiary is under the Office of the Secretary
of Justice. Senator D had likewise been rumored to have an affair with R, a Chinese national
and a temporary resident and businessman of State P. R was suspected of acting as Senator
D’s “bagman” and messenger-intermediary in her dealings with the drug syndicate.
Upon the instruction of President D, Secretary of Justice A ordered the “monitoring

of wireless telecommunications” of Senator D and her alleged lover, R. The order was
made upon an application by the NBI, which found probable cause about Senator D’s
involvement in drugs. The order was also approved by the CSB.
The “monitoring” tapped all wireless communications between Senator D to R,

who had been in and out of the Philippines to visit his relatives in China. The “monitoring”
yielded information about drug trafficking from China and Senator D’s personal
information involving her romantic relationship with R.
State P collected telecommunication data and information from Senator D and R

with the “help” of the Australian and Japanese Governments under MISA of 2015.
What are the legal and factual issues and concerns in this case and why are they
relevant or important?
oOo

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UNIVERSITY OF SAN CARLOS (USC)

SCHOOL OF LAW & GOVERNANCE

SPECIAL ISSUES IN PUBLIC INTERNATIONAL LAW

Class Activity No. 04

State P is a democratic and republican state. Its Constitution guarantees

Strategic monitoring is aimed at collecting information by intercepting

Sections 1 and 2 of the FACA of 2016 authorized the monitoring of wireless

Senator D, a former Secretary of Justice of State P, had been suspected of being a

Upon the instruction of President D, Secretary of Justice A ordered the “monitoring

The “monitoring” tapped all wireless communications between Senator D to R,

State P collected telecommunication data and information from Senator D and R

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